Karen Nicola Lawrie v Bumi Armada Berhad (W-02(IM)(NCvC)-979-05/2022)

In this appeal, the Appellant is appealing against the dismissal of her application to set aside an ex parte order dated 15 March 2021 granting the Respondent leave to serve a Notice of Writ out of jurisdiction.

After considering the written and oral submissions of the parties we allowed this appeal for the reasons that follow.

The Appellant, a citizen of the United States ("US") and United Kingdom ("UK") citizen, member of the Texas Bar and Law Society of England and Wales, was employed as General Counsel by the Respondent (a public listed company) from 22 October 2018. During her tenure, she discovered deficiencies in the Respondent's compliance programme and raised concerns repeatedly.

On 11 November 2019, the Appellant resigned. Under the Employment Contract, she was required to serve six months' notice of resignation (unless the notice requirement was waived by the Respondent).

The parties' accounts on this issue are at variance. The Respondent contends that at a meeting on 27 November 2019, the Appellant requested for the termination of her employment to be effective on 31 December 2019. Despite the Respondent's reminder of the six-month notice requirement, the Appellant unilaterally resigned on 31 December 2019.

The Appellant however disputed this version. She contends as follows:

at the 27 November 2019 meeting, she raised compliance concerns and was told her leaving date would be discussed only after delivering a handover report in the preferred format;

while preferring 31 December 2019, she made no definitive commitment;

after delivering the handover on 2 December 2019, there was no discussion;

on 6 December 2019, the Respondent prematurely demanded USD115,270.26 from the Appellant as penalty before any agreed date for the Appellant's resignation;

on 19 December 2019, the Respondent's Chief Executive Officer, Mr. Gary Christenson, instructed her to remain in the UK and not to return to office;

communications continued until January 2020, with Gary emailing on 7 January 2020 that matters had not progressed;

on 13 January 2020, she disputed the penalty and raised that the Respondent breached the employment contract by non-payment of her salary since 20 December 2019. The Ex Parte Application [7] On 5 Feb 2021, the Respondent commenced proceedings that bought about the present appeal. On 6 March 2021, it filed an ex parte application for leave to serve out of jurisdiction, supported by an affidavit affirmed by Mr Nadchatiram a/l Thiruchelvasegaram ("Mr Nad Segaram"), the Respondent's learned counsel, dated 5 March 2021. [8] It is to be noted that Mr Nad Segaram had affirmed the supporting affidavit and also appeared as counsel for the Respondent at the hearing on 15 March 2021, when leave was granted. The same occurred with the amendment application on 28 April 2021. [9] On 30 July 2021, the Appellant applied to set aside the order on the following grounds:

insufficient affidavit;

(ii) failure to make full and frank disclosure; and

(iii) absence of serious issues to be tried. [10] The learned Judicial Commissioner dismissed the application on 28 April 2022. The Appellant's arguments [11] The Appellant advances three grounds for setting aside the order. Ground 1: Insufficient Affidavit. [12] First, it was submitted that rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 prohibits advocates and solicitors from appearing where they will be witnesses on material and disputed facts. It was further pointed out that 28(c) permits affidavits only as to formal or undisputed facts. It was contended that based on the above provisions, the Deponent (Mr Nad Segaram) should not have affirmed an affidavit on disputed facts and then appeared as counsel. [13] Various authorities were cited in support of this argument. In Million Group Credit Sdn Bhd v Lee Shoo Khoon [1986] 1 MLJ 315, Mahadev Shankar J emphasized that solicitors should be discouraged from filing contentious affidavits. Similarly, the following cases: Kaplands Sdn Bhd v Lee Chin Cheng [2001] 1 MLJ 297, Seng Huat Hang Sdn Bhd v Chee Seng [1986] 1 MLJ 348, and Tan Sri Musa v Uthayakumar [2012] 1 MLJ 68 also showed that solicitors should not affirm contentious affidavits. [14] In regard to the contentious facts, the Appellant pointed out that paragraphs 8 to 18 of the Deponent's affidavit contained highly contentious facts which are central to the issue of whether the Appellant had breached the Employment Agreement particularly the alleged breach of the notice requirement. The averments made by the Deponent is reproduced here:

On 11.11.2019, the Defendant tendered her resignation in writing ("Resignation Notice"). Pursuant to clause 10.3 of the Employment Contract, the Defendant was required to serve a notice period of 6 months, unless otherwise waived by the Plaintiff. In the Resignation Notice, the Defendant made no reference to any period of notice.

On 27.11.2019, the Defendant met with the Plaintiff's Chief Executive Officer, Gary Christenson, Maureen Toh, a nonindependent non-executive Director of the Plaintiff, and Sasha Vijayananthan, the Head of Business and Corporate Partnering, to discuss the handover and exit strategy following the Defendant's resignation. During this meeting, the Defendant informed Gary Christenson and Maureen Toh of her plans to return to the UK on 19.12.2019 for the year-end holidays and did not wish to return to Kuala Lumpur thereafter. Instead, she requested for her employment to be terminated effective 31.12.2019. The Defendant further claimed that she was not required to serve the six-month contractual notice period.

In response, the Defendant was reminded at the said 27.11.2019 meeting that there was a requirement to serve a notice period of six months pursuant to the Employment Contract. There was no waiver at any material time of the notice period by the Plaintiff. Therefore, contractually, the Defendant's employment would only be terminated effective 10.5.2020.

On 31.12.2019, notwithstanding the contractual notice period of 6 months and that there was no agreement to waive the contractual notice period, the Defendant unilaterally and prematurely terminated her employment with the Plaintiff in breach of the Employment Contract.

Based on the information available on the website of Seaspan Corporation, a company based in Hong Kong with its registered address at Unit 2, 16th Floor, W66S Building, No. 668 Castle Peak Road, Cheung Sha Wan, Kowloon, Hong Kong ("Seaspan"). The Defendant was appointed as the General Counsel of Seaspan in February 2020. This is the last known where abouts of the Defendant, to the best of the Plaintiff's knowledge, information and belief. The Defendant may probably be found at this address.

The Plaintiff verily believes that if the Defendant is not in Hong Kong, to the best of the Plaintiffs knowledge, information and belief, the Defendant may probably be residing at her usual last known permanent residential address indicated in paragraph 4 of this affidavit, above. C1. The Defendant Breached the Employment Contract.

The Plaintiff has been advised that the Defendant breached the Employment Contract with impunity by failing to serve out her notice period in full and in prematurely bringing an end to her employment by repudiating her obligations under the Employment Contract notwithstanding the fact she occupied a crucial senior role in the Plaintiff's organisation.

In addition, the Defendant was appointed as the General Counsel of Seaspan Corporation, a company based in Hong Kong, in February 2020. This is despite the fact that the Defendant's employment with the Plaintiff would only have only ended effective 10.5.2020.

At all material times, the Defendant's intention not to serve out the contractual notice period in full, and subsequent communications between the Plaintiff and Defendant were communicated and received by the Plaintiff at its place of business in Kuala Lumpur, Malaysia. I refer in this regard to the contents of paragraphs 8 to 11 above. [15] Second, the Appellant relied on Order 41 rule 5(2) of the Rules of Court 2012 ("ROC 2012") which requires deponents to state the sources and grounds of information or belief. In the present case it was submitted that the Deponent merely stated his averments were based on instructions furnished by the Plaintiff and/or derived from documents made available by the Plaintiff only. It was further submitted that this is insufficient because:

the Respondent is an artificial entity;

no individual is identified; and

no specific documents are referenced. [16] Third, it was submitted that no explanation had been offered as to why appropriate Respondent officers (who had personal knowledge) could not have affirmed the affidavit. Ground 2: No Full and Frank Disclosure [17] In regard to this ground it was submitted that in an ex parte application, applicants must make full and frank disclosure of all material facts, including unfavorable ones (see the case of Cantrans Services (1965) v Clifford [1974] 1 MLJ 141). It was further submitted that a failure to do so may then be a ground in itself to set aside the ex parte order. [18] In the present case it was contended that the Respondent failed to disclose:

The fact that during the Appellant's employment, the Appellant was made party to and/or exposed to legal and compliance risks as the General Counsel of the Respondent and as a citizen of the US and the UK. The Appellant raised these issues numerous times with Gary and Maureen (paragraph 9 Encl.17 p 267).

The fact that the Appellant's continued presence as General Counsel of the Respondent put the Appellant at risk of breaching the laws of the US and/or UK, a matter which was brought up by the Appellant on a number of occasions with officers of the Respondent and which is therefore both relevant and material in the Appellant having to resign and/or consider herself as having been constructively dismissed (paragraph 9 Encl.17 p 267).

The fact that during the meeting on 27.11.2019 between Gary, Sasha, Maureen and the Appeliant, the Appellant did raise her compliance concerns (paragraph 9(e) Enci. 17 p 268).

The fact that during the said meeting on 27.11.2019, Maureen expressly said that the Appellant's leaving date would only be discussed when the handover report was delivered in accordance with Maureen's preferred format. The Appellant's preference was to leave by 31.12.2019 but the Appellant had not decided, nor did the Appellant intimate, that the Appellant would definitively leave on 31.12.2019 come what may (paragraph 9 Encl.17 p 268).

The fact is that on 2.12.2019, the Appellant delivered the handover report according to Maureen's preferred format. Despite this, there was no discussion on the Appellant's leaving date (paragraph 9(f) Encl. 17 p 269).

The fact that on 6.12.2019, an email was sent to the Appellant demanding a sum of USD115,270.26 by way of penalty for the Appellant purportedly having left on 31.12.2019. This is despite the fact that there had been no leaving date agreed between the Respondent and the Appellant as at 6.12.2019 (paragraph 9(h) Encl.17 p 270).

The fact that on 8.12.2019, the Appellant sent an email to Alexandra Schaapveld disputing the email dated 6.12.2019 (see: paragraph 9(i) Encl. 17 p 270).

The fact that on 19.12.2019, the Appellant had the following conversation with Gary (see: paragraph 11 Encl.18 p 9) -

Gary asked the Appellant of her plans and the Appellant stated that the Appellant had a return flight booked from London to Kuala Lumpur on 4.1.2020 and the Appellant would be back in the office on

1.2020 as the Appellant's leaving date had not been agreed upon; and

(ii) Gary informed the Appellant that it would be better for the Appellant to stay in the UK and not "to show (the Appellant's) face in the office" while Gary worked to resolve the tense situation in respect of the Appellant's employment over the holiday period;

(iii) Gary further stated that he would meet the Appellant in London the first week of January. Gary informed the Appellant that he would be contacting the Appellant to arrange a suitable date and time; and

(iv) as such, it was the Respondent through its CEO, Gary, who requested the Appellant not to return to Malaysia.

The fact that on 13.1.2020, the Appellant sent an email stating that the Respondent had fundamentally breached the Agreement when the Respondent failed to pay the Appellant her salary since 20.12.2019 (see: paragraph 11(c) Encl.18 p 10). The Respondent's Position [19] In the Respondent's submission, it took the position that it had satisfied Order 11 rule 4 ROC 2012's requirements and the case falls within Order 11 rule 1 ROC 2012, where the Respondent had demonstrated a good arguable case which requires only showing a serious issue to be tried (see the case Seaconsar Far East v Bank Markazi [1994] 1 AC 438) and Malaysia is the forum conveniens. [20] In regard to the affidavit, it was submitted that:

Order 41 rule 5(2) ROC 2012 permits information or belief statements in interlocutory affidavits;

the facts were derived from the Statement of Claim and was drafted on instructions of the Respondent;

for leave applications, pleaded allegations are assumed true, so it was submitted that facts cannot be regarded as contentious at that stage;

the sources and grounds were stated in paragraph 2 of the affidavit;

it was pointed out that Rule 28(c) permits advocates and solicitors to affirm affidavits on formal or undisputed facts; and

Malaysia has a fused legal profession and there was no distinction between advocates and solicitors. [21] In respect of the grounds on disclosure raised by the Appellant, it was submitted that:

all material facts relevant to the claim, had been disclosed;

the alleged undisclosed facts relate to the Appellant's justifications for non-compliance, and they did not arise from the Respondent's claim;

it would be unreasonable to expect an anticipation of all the defence arguments;

it was further submitted that even if true, these facts were immaterial as they did not change that six months' notice requirement. Furthermore, no waiver had been given by the Respondent and the fact remains that full notice was not served by the Appellant; and

it was also pointed out the leave applications are procedural matters posing no real prejudice to the case that has been fixed for trial. Our decision [22] Order 12 rule 10(1) ROC 2012 permits the Appellant to apply for discharge of orders granting leave to serve out of jurisdiction. [1] An Appellant who intends to dispute the jurisdiction of the Court in the proceedings by reason of any irregularity as is mentioned in rule 9 or any other ground shall enter an appearance and, within the time limit for serving a defence, apply to the Court for:

an order setting aside the writ or service of the writ on him;

an order declaring that the writ has not been duly served on him;

the discharge of any order giving leave to serve the writ on him out of the jurisdiction;

the discharge of any order extending the validity of the writ for the purpose of service;

the protection or release of any property of the Appellant seized or threatened with seizure in the proceedings;

the discharge of any order made to prevent any dealing with any property of the Appellant;

a declaration that in the circumstances of the case, the Court has no jurisdiction over the Appellant in respect of the subject matter of the claim or the relief or remedy sought in the action; or

such other relief may be appropriate." [emphasis added] (see also Tuan Haji Ahmed v Arab-Malaysian Finance [1996] 1 MLJ 30). [23] In the present appeal, the central issues to be determined by this court relate to findings of the learned High Court Judge ("LHJ") on the issue of sufficiency of affidavit and full disclosure as alluded to earlier. [24] At this stage it is necessary to set out rule 28 of Legal Profession (Practice and Etiquette) Rule 1978: "Rule 28. Advocate and solicitor not to appear in a case where he is a witness:

An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardizing his client's interest;

An advocate and solicitor shall not appear before an appellate tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below; and

This rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as a formal or undisputed fact in a matter in which he acts or appears." [25] Rule 28(a) prohibits advocates and solicitors from appearing where they will be witnesses on material and disputed facts. Rule 28(c) provides a narrow exception for "formal or undisputed facts". [26] In the Singapore High Court case of: [23] In The Evpo Agsa'; Continental Grain Co v Owners of the Ship or Vessel 'Evpo Agsa'; [1992] 1 SLR (R) 662 ("The Evpo Agsa") [TAB 9] at p. 667, the Singapore High Court held as follows: "Secondly, the rule was stated more than 400 years ago that counsel and counsel's clerks should not become witnesses in cases in which they are retained: Breame v Breame (1571) 21 ER 120 and Lee v Markham (1568) 21 ER 120. In R v Secretary of State for India in Council & Ors, ex p Ezekiel [1941] 2 KB 169 Humphreys J, after the judgments had been delivered, repeated the time-honoured injunction in these words: Before the court parts with this case, there is a short observation which the other members of the court desire me to make and with which I agree. It was brought to the attention of the court that, on the hearing at Bow Street police court, junior counsel on one side was called as a witness to prove certain aspects of Indian law and continued thereafter to act as counsel in the case. No objection was taken to this by counsel on the other side. We think it right to point out that this is irregular and contrary to practice. A barrister may be briefed as counsel in a case or he may be a witness in a case. He should not act as counsel and witness in the same case.

Those must equally apply to counsel making affidavits where the facts are in dispute. The reason is plain. Advocates are officers of court and, as such, great trust is placed on them. When counsel identify themselves not with the case or the client, they could unconsciously or consciously shape the evidence to favour their case and client. They must not allow themselves to be drawn into a situation where they consciously or unconsciously do just that. Again, it places the court in difficulty." [27] In the present case it was not disputed that Mr Nad Segaram had affirmed the affidavit and also appeared as counsel at the hearings. Based on the provisions of rule 28 above, it is clear that the provisions in (a) and (c) would come into play if it can be shown that the averments in the affidavit for the leave application are on contentious facts which are not within the personal knowledge of the Deponent. [28] In this regard we have considered the arguments raised by the Respondent that the facts are not contentious as they are merely pleaded facts and assumed true for leave applications. We are unable to accept the arguments as it can be seen that paragraphs 8 to 18 of the Deponent's affidavit (above) had addressed highly contentious matters. [29] We are of the view that the averments of what occurred at the 27 November 2019 meeting, i.e., whether the Appellant definitively committed to leaving on 31 December 2019, whether she was reminded of the notice requirement, whether there was a waiver of the notice requirement, and the nature of communications through January 2020, were matters within the personal knowledge of the parties that attended the meeting and not within the personal knowledge of the Deponent. [30] It is to be observed that the Appellant's version in this case materially differs from the Respondent's version as the Appellant contends that compliance concerns were raised particularly on the following matters: the leaving date was conditional on handover discussions; she did not definitively commit to 31 December 2019; Gary instructed her to remain in the UK; communications continued into January 2019 and the Respondent breached the Employment Contract by not paying the Appellant's salary. [31] We find these are disputed questions of fact which are neither formal nor undisputed as provided in the exception in rule 28(c). [32] From the averments stated in the affidavit, it is clear that the Deponent lacked personal knowledge of the communications, meetings and events that he had affirmed. [33] We are also of the view that paragraph 2 of the affidavit of the general statement also fails to comply with Order 41 rule 5(2) ROC 2012. Order 41 rule 5(2) ROC 2012 requires the source of the information to be disclosed in the affidavit. In this regard, we find that by merely relying on the averments in the affidavit, the court was not informed of, among others, the following facts: which officer provided the information? Which documents were relied upon? Who informed the Deponent about the conversations? Without a disclosure of the source of these material and contentious facts, we are of the view there were insufficient evidence before the court to consider the leave application. [34] Further, we also note that there was no explanation offered as to why the appropriate Respondent's officers (Gary Christenson, Maureen Toh, or Sasha Vijayananthan, all of them were present at the meetings) could not have affirmed the affidavit. [35] Apart from the above reasons, we are also of the view the present appeal ought to be allowed as there are merits in the Appellant's arguments that there was a failure to make full and frank disclosure of material facts in the leave application. [36] It is to noted in Cantrans Services (1965) Ltd v Clifford [1974] 1 MLJ 141 the Federal Court, relying on the English decision of The Hagen [1908] P 189, emphasised the need for full and frank disclosure in ex parte applications for leave to serve out of jurisdiction. As Farwell L.J. said in "The Hagen": "During these present sittings Vaughan Williams L.J. and myself have on more than one occasion had to consider Order XI., and we have had many authorities discussed and fully considered by the court, and the conclusion to which the authorities led us I may put under three heads. First we adopted the statement of Pearson J., in Societe Generale de Paris v. Dreyfus Brothers ((1885) 29 Ch. D. 239, at p. 242) that it becomes a very serious question, and ought always to be considered a very serious question, whether or not, even in a case like that, it is necessary for the jurisdiction of the court to be invoked, and whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction.' The second point which we considered established by the cases was this, that, if on the construction of any of the sub-heads of Order XI. There was any doubt, it ought to be resolved in favour of the foreigner; and the third is that, in as much as the application is made ex parte, full and fair disclosure is necessary, as in all ex parte applications, and a failure to make such full and fair disclosure would justify the court in discharging the order, even although the party might afterwards be in a position to make another application." What Facts Were Not Disclosed? [37] In the present case, as mentioned earlier, the Appellant had contended that there were numerous material facts (as averred in her affidavit) that were not disclosed in the affidavit in support of the leave application. Were These Facts Material? [38] In this regard we have considered the Respondent's submission on this issue that the alleged non-disclosed facts are not material because they relate to the Appellant's reasons for resigning, whereas the Respondent's claim is about the failure to serve the notice period. It was submitted that that it would be unreasonable to expect the Respondent to anticipate all arguments and points which might be raised by the Appellant. [39] After having carefully considered this argument, with respect we are unable to agree with the Respondent's submission. The facts as contended by the Appellant, in our view, are not merely arguments or points that might be raised in defence. They are factual matters that go directly to the issue of whether there was a clear breach of the notice period requirement, which is the very foundation of the Respondent's claim and these are facts that the Court would need to consider in determining whether there is a serious issue to be tried or a good arguable case that the Appellant had breached the notice period requirement. [40] We allow this appeal on two independent grounds: First, the supporting affidavit was insufficient and had breached rule 28 and Order 41 rule 5(2). Second, material facts were not disclosed in the Respondent's affidavit. The Respondent failed to disclose facts which are material for the court to assess whether there existed a good arguable case, including circumstances surrounding the leaving date, on-going communications, premature penalty demand, the CEO's instruction against returning to Malaysia and alleged non-payment of the Appellant's salary. [41] In the circumstances the appeal is allowed. [42] The ex parte Amended Order dated 30 April 2021 is set aside. [43] The Respondent shall pay the Appellant's costs of this appeal and the High Court's application (subject to allocatur). [44] This order is without prejudice to the Respondent's right to make a fresh application in accordance with applicable rules and principles. Dated:15 January 2026 (ISMAIL BIN BRAHIM) JUDGE COURT OF APPEAL, MALAYSIA Counsel for the Appellant: Rishwant Singh, farrisya [Messrs Cecil Abraham & Partners]Counsel for the RespondentRabindra Nathan, She Zhen Yang,Chew Mingyih & Nurul Hafizah [Messrs Shearn Delamore & Co]