Fine Cut Precision Sdn Bhd v Low Siew Ching (BA-22NCvC-404-10/2020)

LOW SIEW CHING [NRIC NO.: 660801-08-5416] …

LOW KAH SOON [NRIC NO.: 950604-10-5743]

MOU YOKE CHOO (sued in her personal capacity)

MOU YOKE CHOO (Sued as guardian of LOW CHINN WEN (A minor) [Birth Certificate No.: CS 09635/NRIC NO.: 120717-10-3012]

MOU YOKE CHOO (Sued as guardian of LOW KAH REN (A minor) [Birth Certificate No.: DB12385]

MOU YOKE CHOO (Sued as guardian of LOW KAH ZHENG (A minor)) [Birth Certificate No.: DB12386]

LIM CHOI YONG [NO. K/P: 610629-08-6226] 12/02/2025 15:47:08 BA-22NCvC-404-10/2020 Kand. 248 S/N eUV3tBplbkqqOnD834CZyw (BY ORIGINAL ACTION)

MOU YOKE CHOO (F) [NO. K/P: 841110-08-5292] …

MOU YOKE CHOO (F) (Claiming as the guardian of LOW CHINN WEN) [Birth Certificate No.: CS09635/NRIC NO.: 120717-10-3012]

MOU YOKE CHOO (F) (Claiming as the guardian of LOW KAH REAN) [Birth Certificate No.: DB12385]

MOU YOKE CHOO (F) (Claiming as the guardian of LOW KAH ZHENG) [Birth Certificate No.: DB12386]

LOW SIEW CHING (P) [NRIC NO.: 660801-08-5416] …

FINE CUT PRECISION SDN BHD [COMPANY NO.: 472423-A]

LOW KWAN LAI [NRIC NO.: 551113-08-5161]

LOW YANG LEEN (F) [NRIC NO.: 510118-08-5792]

LOW CHINN YI (F) [NRIC NO.: 840824-14-5790] (BY COUNTERCLAIM) S/N eUV3tBplbkqqOnD834CZyw Grounds of Judgment Introduction [1] The plaintiff is seeking a declaration that it is the true owner of assets, fixed deposits, funds, and a vehicle held in trust by the first and second defendants. The plaintiff also seeks a declaration that the third defendant was in breach of her fiduciary duties and seeks the return of the following:

four factory units;

(ii) one apartment;

(iii) one condominium;

(iv) one bungalow;

Manulife Asset Investment;

(vi) Public Mutual Investment;

(vii) Philip Investment;

(viii) RM150,000.00 deposited in PBB;

(ix) a Volkswagen Beetle motor vehicle. [2] The plaintiff has applied to strike out the defence and counterclaim of the third to sixth defendants and to enter judgment against them. Alternatively, the plaintiff seeks an unless order against the third defendant, requiring compliance with the Varied Mareva and S/N eUV3tBplbkqqOnD834CZyw Interrogatories Orders within eight days. Should the third defendant fail to comply, their defence and counterclaim will be struck out, and judgment will be entered against them. Additionally, the plaintiff requests a dispensation of personal service regarding the unless order. [3] The plaintiff's application was based on the assertion that the third defendant deliberately violated the Mareva Order, the Interrogatories Order, and the Varied Mareva Order, as well as failing to disclose the location of the RM3 million that had been withdrawn from various sources of investments. [4] I allowed the prayer that the third defendant fully complies with the Varied Mareva and Interrogatories Orders within 14 days; failing this, the defence and counterclaim of the third to sixth defendants shall be struck out, and judgment entered in favour of the plaintiff on 30-9-2024 (hereinafter referred to as Court Order). [5] After the expiry of fourteen days, the plaintiff reiterated that the third defendant had not complied with the Court Order and sought for the defence and counterclaim to be struck off and judgment entered in favour of the plaintiff. S/N eUV3tBplbkqqOnD834CZyw [6] The court disallowed the plaintiff’s request for the defence and counterclaim to be struck off and for judgment to be entered in favour of the plaintiff. However, I ordered that the third to sixth defendants be barred from filing or adducing any new documents or evidence pertaining to the Mareva, Varied Mareva, and the Interrogatories Orders from my order dated 13-12-2024. I set the case down for full trial. [7] Consequently, this appeal has been filed. Background Facts [8] This matter's circumstances pertain to two cases jointly adjudicated in this court. In the preceding case, designated BA-22NCVC-209- 05/2019 (hereinafter referred to as case 209), the third to sixth defendants in the current action have instituted a lawsuit against the first defendant to assert claims regarding seven properties that the first defendant purportedly holds under a trust arrangement. Furthermore, the trust deeds are to be considered valid and binding upon the first defendant. [9] Following the filing of the case 209, the third defendant obtained an injunction order to remain at No. 1 Jalan Pinggiran Putra 50A, S/N eUV3tBplbkqqOnD834CZyw Taman Pinggiran Putra, Section 2, 43300, Bandar Putra Permai, Seri Kembangan, Selangor without any interference from the first defendant. [10] On 8-11-2019, the plaintiff in the present case secured an order to intervene as the second defendant in case 209. [11] On or around 6-10-2020, the plaintiff, the second defendant in case 209, filed this current suit. [12] The third defendant to the sixth defendant filed a defence and counterclaim stating that the third defendant’s late husband was the true owner of Fine Cut Precision Sdn Bhd and repeated their claim in case 209. [13] Thereafter, the plaintiff obtained several orders against the third to sixth defendants, which the plaintiff’s counsel summarised in his written submission, and I have adopted them in extenso here. [14] Mareva & Disclosure Order dated 23-3-2021 on the following terms:

restrained the third defendant dealing with the Manulife Investment, Public Mutual Investment, the Fixed Deposit; S/N eUV3tBplbkqqOnD834CZyw

(ii) froze the third defendant’s banking accounts up to a sum of RM1,417,815.42;

(iii) ordered disclosure by the third defendant by way of an affidavit of all investments under her name and jointly with others as well;

(iv) ordered disclosure by the third defendant of all her banking accounts with relevant documents to show proof as to the amounts available;

(iv) ordered disclosure by third parties such as Manulife Asset Management Services Bhd, Public Mutual Bhd and Public Bank Bhd. [15] Orders for Variation and Interrogatories, dated 14-9-2022, were obtained based on new material facts regarding the investments from the relevant investment bodies. [16] The Varied Mareva and the Interrogatories' Orders were as follows:

To increase the upper limit of the sum of monies to be frozen in the third defendant’s accounts up to about RM 3 million;

(ii) To include various Public Mutual accounts held jointly by the third and seventh defendants; S/N eUV3tBplbkqqOnD834CZyw

(iii) To seek further discovery and/or disclosures from the third defendant of the whereabouts of nearly RM3 million withdrawn by the third defendant. [17] The third defendant filed an appeal in respect of the Varied Mareva Order dated 14-9-2022. The Court of Appeal dismissed the appeal on 29-11-2023, and thereafter, the plaintiff filed the current application, which this Court decided on 13-12-2024. Issue To be Tried [18] Whether this is a fit and proper case for the third to sixth defendants defence and counterclaim to be stuck off and final judgment to be entered in favour of the plaintiff. Decision of this Court [19] The plaintiff’s counsel submitted that this court has the inherent jurisdiction to ensure its process is not abused and to prevent injustice at all times. Order 92, rule 4 of the Rules of Court 2012, was referred. The Court of Appeal case in Ezzen Heights Sdn Bhd v Ikhlas Abadi Sdn Bhd (Soh Yuh Mian, intervener) [2011] 4 MLJ 173 was submitted as relevant concerning the inherent powers of this Court. [20] The plaintiff argues that the affidavits filed by the third defendant in compliance with this Court Order dated 30-9-2024 are similar to those filed previously and lack substantive compliance on the following: S/N eUV3tBplbkqqOnD834CZyw

substantial withdrawals made by the third defendant with no explanation;

(ii) no disclosure of information as to RM3 million whereabouts and in whose custody is the money;

(iii) non-disclosure of actual numbers of bank accounts under the third defendant’s name or joint accounts;

(iv) alleged made-up family expenses. [21] Consequently, the plaintiff further asserted that information and documents from the Mareva, Varied Mareva, and the Interrogatories Orders were provided to the plaintiff from third parties, which the third defendant had failed to furnish. The plaintiff has prepared expert reports for the full trial. [22] This case's undisputed facts rest on the issue of the actual ownership of the properties, funds, fixed deposits, and a car. [23] It is a well-established principle that any discretionary power granted to this court must be exercised fairly and judiciously. No party involved in a case can be denied justice. The High Court's decision in the case of Packirisamy v Janagi [1970] 2 MLJ 202 refers. [24] In the case of How Hock Sing v Lee Say Peng & Ors [2015] 9 CLJ 368, Mohd Nazlan JC explained that an unless order “is an order of S/N eUV3tBplbkqqOnD834CZyw the court that directs a party to perform some process requirement by a specified date and states the consequences of transgression.” [25] In the Court of Appeal case of Md Amin bin Yusof & Anor v Cityvilla Sdn Bhd [2004] 3 CLJ 88, it was held as follows: “ …….. Surely, it would not meet the ends of justice if the order made resulted in a miscarriage of justice. Therefore, all the circumstances of the case, inclusive of whether the failure to comply with the peremptory or unless the order was indeed intentional and contumelious, should be looked at by the judge before penalizing the defaulting party (see In re Jokai Tea Holdings Ltd (Note) [1992] 1 WLR 1196 ca).” [26] The explicit recognition of the discretionary power granted to the court before enacting the Rules of Court 2012 is evident in Md Amin‘s case, supra. [27] I apply the principle of the Md Amin case, supra, to determine whether the third defendant has willfully acted contumaciously, disregarding all Court Orders, including the latest Order dated 30-9-

[28] The plaintiff’s grievances are based on the fact that the third defendant has not disclosed information regarding the investment funds and money the plaintiff allegedly acquired from third parties. S/N eUV3tBplbkqqOnD834CZyw [29] I examined the affidavits filed by the third defendant in respect of the Mareva order, Varied Mareva Order, Interrogatories Order and the Unless Order as follows:

Affidavit affirmed on 4-5-2021 (Enclosure 41);

(ii) Affidavit affirmed on 6-5-2021 (Enclosure 42) Third Defendant’s Second Disclosure Affidavits

Answer to Interrogatories affirmed on 17-10- 2022 (Enclosure 104);

(ii) Affidavit in respect of the Varied Mareva Order affirmed on 9-11-2022 (Enclosure 109);

(iii) Additional affidavit affirmed on 29-1-2024 (Enclosure 186) Third Defendant’s Third Disclosure Affidavits

Affidavit affirmed on 11-10-2024 (Enclosure 229);

(ii) Affidavit affirmed on 11-10-2024 (Enclosure 230);

(iii) Affidavit affirmed on 11-10-2024 (Enclosure 231). S/N eUV3tBplbkqqOnD834CZyw [30] After thoroughly examining the above affidavits and the reasons provided by the third defendant regarding the filing of these affidavits, I find that the argument presented by the plaintiff lacks depth for the following reasons:

The court is satisfied with the explanation given by the third defendant that she complied with this Court's Orders with the information in her possession and knowledge. The fact that she admitted her compliance with the Court Orders was flawed due to limited resources, which only proved that she could not be disbelieved.

(ii) I concur with the third defendant's assertion regarding the significant issues associated with the ownership of the properties, investments, deposits, and a vehicle to be tried in this case. This warrants a full trial.

(iii) The principles of natural justice will be compromised if the plaintiff is permitted to enter a final judgment against the third defendant without a full trial.

(iv) When the court ordered the third defendant to comply with its orders and imposed the unless order should she fail, the third defendant made the third disclosure outlined above. Upon reviewing her third disclosure, I am satisfied S/N eUV3tBplbkqqOnD834CZyw that there is no need to imposition the unless order against her.

I am confident that, under any circumstances and based on this case, the information obtained from third parties can be effectively presented to the third defendant, enabling this court to assess it and arrive at an accurate finding of fact during a full trial.

(vi) Permitting the plaintiff to benefit from the properties, investments, fixed deposits, and a vehicle while the fundamental ownership issue remains unaddressed through the weaponisation of the unless order would constitute the utmost injustice to the third defendant and her children.

(vii) This case is appropriate for a full trial despite the plaintiff's dissatisfaction with the disclosures made by the third defendant. The order I issued on 13-12-2024 prohibited the third defendant from calling any witnesses or presenting new documentary evidence pertaining to the court orders, thereby safeguarding the interests of the plaintiff, who has persistently asserted that the third defendant is withholding evidence. S/N eUV3tBplbkqqOnD834CZyw

(viii) This court is satisfied that the third defendant has not willfully acted contumaciously to the Court Orders. Conclusion [31] I disallowed final judgment from being entered against the third to sixth defendants and ruled that their counterclaim should not be struck off based on the reasonings stated above. The case has been set down for trial. Dated: 12th February 2025 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam Selangor Date of Decision: 13th December 2024 Counsels: For the Plaintiff: Owee Chia Ming & Lim Jun Ni, [Messrs Owee & Co.] For the 1st – 2nd Defendants: Lee Boon Koon, [Messrs Arissa Tan Chien & Co.] S/N eUV3tBplbkqqOnD834CZyw For the 3rd – 6th Defendants: Phoon Ngai Hoe, [Messrs N H Phoon & Associates] For the 7th Defendant: Mohd Nor bin MD Deros, [Messrs Faizan & Co.] S/N eUV3tBplbkqqOnD834CZyw