Knm Process Systems Sdn Bhd v 1. ) Lukoil Uzbekistan Operating Company LLC (WA-22C-110-12/2017)

1.

MALAYAN BANKING BERHAD ... DEFENDANTS THE JUDGMENT OF Y.A. LEE SWEE SENG [1] The Defendant had proceeded with a Notice for Direction for Assessment of Damages in Enclosure 38. In the course of these proceedings various applications and affidavits had been filed and they are compendiously summarized as follows by the Defendant: 2

Plaintiff’s Writ of Summons dated 6.12.2017 1

Plaintiff’s Statement of Claim dated 6.12.2017 (“Statement of

Plaintiff’s Notice of Application dated 6.12.2017 (“Injunction

Plaintiff’s Affidavit in Support affirmed by Chew Fook Sin on 6.12.2017 (“Plaintiff’s 1st Affidavit”)

Plaintiff’s Further Affidavit in Support affirmed by Chew Fook Sin on 6.12.2017 (“Plaintiff’s 2nd Affidavit”)

Ex-Parte Injunction Order dated 6.12.2017 12 7. Ad Interim Injunction Order dated 20.12.2017

Defendant’s Notice of Application dated 26.12.2017 (“Enclosure 25”)

Defendant’s Affidavit in Support affirmed by Otabek Mardonov dated 26.12.2017 (“Enclosure 26”)

Defendant’s Affidavit in Reply affirmed by Otabek Mardonov dated 28.12.2017 (“Enclosure 30”) 30 3 Prayer [2] The Plaintiff had raised an objection to Enclosure 38 on ground that it had been premised on Enclosure 25 which is a hybrid application in that the Defendant there had applied for both a prayer for stay of proceedings under section 10 Arbitration Act 2005 as well as a prayer for setting aside the ex-parte injunction. [3] The Plaintiff argued that such a hybrid application is bad in law and as such there is no proper application that could be proceeded with for assessment of damages arising out of the ex-parte injunction that was subsequently set aside. [4] The Plaintiff further submitted that the ex-parte injunction granted was good in law and that there is no ground shown whether in law or in the circumstances of the case which would have supported the setting aside application by the Defendant. [5] The Plaintiff thus contended that Enclosure 38 ought to be dismissed. Prior Proceedings [6] The following facts not disputed and as narrated by the Defendant would be helpful for an understanding of the issue in this objection to the application for directions for assessment of damages arising from the setting aside of an ex-parte injunction. [7] The Plaintiff had filed the Writ Action herein against the Defendant on 6.12.2017. On the same day, the Plaintiff obtained an Ex-Parte Injunction against the Defendant vide the Notice of Application dated 6.12.2017 (Enclosure 5) (“Ex-Parte Injunction”), seeking to permanently restrain the Defendant from making a demand and/or receiving the sums under Bank Guarantee No.: 5789031, Bank Guarantee No.: 5789175 and Bank 4 Guarantee No. 5842339 (“Bank Guarantees”). [8] Learned counsel for the Defendant contended that the Ex-Parte Injunction Order via the Writ Action was obtained despite the existence of an arbitration agreement between the parties, which was not disclosed to the High Court in the Writ Action and there was also a failure to comply with Order 29 rule r 1(2A) of the Rules of Court 2012 in this regard. [9] On 20.12.2017, the Court then granted the Plaintiff an Ad Interim Injunction Order. The Defendant then filed an application to stay the Writ Action under Section 10(1) of the Arbitration Act 2005 and also to set aside the Ex-Parte Injunction Order (“Enclosure 25”). [10] On 2.1.2018 the Plaintiff withdrew its action against the Second Defendant Malayan Banking Berhad against their decision to abide by any decision of this Court on the injunction. Therefore for the purposes of these proceedings and judgment, the reference to the Defendant shall mean the First Defendant only. [11] Despite the fact that the Ex-Parte Injunction Order was obtained via a Writ Action in breach of the arbitration agreement, learned counsel for the Defendant argued that the Plaintiff was given a second bite of the cherry when the Court allowed the Plaintiff to file an Originating Summons and this was filed bearing No. WA-24C(ARB)-5-01/2018 (“OS Action”) for an interim injunction in aid of arbitration. [12] In the Court’s minutes it was recorded that by consent, the Plaintiff shall file a fresh Originating Summons specifically under section 11 Arbitration Act 2005 and that the Defendant shall be allowed to refer to the affidavits filed herein for purposes of opposing the Plaintiff’s new OS Action. The Plaintiff’s new OS Action shall be the same as the affidavit filed in support of this Enclosure 5 which is the Plaintiff’s application for an 5 injunction. [13] In the meanwhile this Court granted an Ad-Interim Injunction until the disposal of the OS Action. The Defendant reserved their position on the setting aside of the Ex-Parte Injunction. The fresh OS Action had come before another High Court in Kuala Lumpur before my learned sister Justice Azizah Nawawi for hearing. Both parties agreed to be bound by the outcome of the OS Action. The OS Action was dismissed on 19.7.2018. [14] On 20.7.2018, this Court then discharged the Ad-Interim Injunction, and directed that the Defendant file an application for assessment of damages sustained by the Defendant if any and if minded to. The relevant period for the assessment of damages would be for:

1.1. between 6.12.2017 to 19.12.2017 as a result of the Ex-Parte Injunction dated 6.12.2017 granted herein; and 1.2. between 20.12.2017 to 19.7.2018 as a result of the Ad-Interim Injunction dated 20.12.2017 granted herein. [15] The parties will be at liberty to submit on the issue of whether the Ex-Parte Injunction ought to be set aside. Enclosure 38 was then filed pursuant to Order 37 rule 1 of the Rules of Court 2012, to seek directions from this Court in respect of the aforesaid matters. Principles Whether this Court must still determine whether the Ex-Parte Injunction was properly obtained [16] Learned counsel for the Defendant said the first issue for determination is whether the setting aside of the Ex-Parte Injunction needs to be heard in view of the fact that the Ex-Parte Injunction had already lapsed upon the end of the 21 days period. 6 [17] The Court of Appeal in RIH Services (M) Sdn Bhd v. Tanjung Tuan Hotel Sdn Bhd [2002] 3 MLJ 1 at pages 8-9 had held that even though the Ex-Parte Injunction had since lapsed, the question of whether the Ex-Parte Injunction was rightly granted must still be determined for the purpose of assessment of damages. The Court of Appeal stated: “...if the defendant wants to set aside the ex parte order, the defendant is at liberty to file an application for that purpose. It is at the hearing of that application that the court should decide whether to set it aside, if it has not lapsed. If in the meantime, the ex parte order has lapsed, the court should nonetheless hear the application, not for the purpose of determining whether to set it aside because it has lapsed, but for the purpose of determining whether it should have been made in the first place. This is necessary in order to determine whether damages should be awarded. ...The fact that an ex parte order lapses automatically after 21 days does not mean that the defendant is automatically entitled to damages. The question is should the ex parte order have been made at all? Only if it should not, then the order for assessment of damages should be made. That has not been decided. There was not even an application for that purpose.” (emphasis added) [18] I agree with the above approach. Whether the Ex-Parte Injunction ought not to have been granted seeing that the Inter Partes application for the Injunction had been dismissed 7 [19] In the present case, the Defendant contended that the Ex-Parte Injunction that had expired after the expiry of 21 days should not have been granted in the first place. It was argued that since the Inter Partes Injunction was dismissed, then invariably it must mean that the Ex-Parte Injunction ought not to have been granted in the first place. [20] As stated both parties have agreed to be bound by the decision of the Court in the OS Action. An Ex-Parte Injunction is nevertheless an injunction and the test in American Cyanamid v Ethicon [1975] AC 396, at pages 407-408 must be followed. [21] As the Court in the OS Action had dismissed the Plaintiff’s application for Inter Partes Injunction, it follows that in the present case, the Plaintiff is not entitled to any Inter Partes Injunction. The dismissal of the Inter Partes Injunction is based, inter alia, on the grounds that the Plaintiff could not even satisfy the court the first limb of the American Cyanamid test (as modified for bank guarantee cases), which is the absence of evidence of fraud or unconscionability. [22] Learned counsel for the Defendant submitted that as a corollary to that, it should also follow that the Ex-Parte Injunction should be set aside. The Defendant referred to the following cases, where upon the dismissal of the Inter Partes Injunction application, the Ex-Parte Injunction was also set aside: Lotteworld Engineering & Construction Sdn Bhd v Castle Inn Sdn Bhd & Anor [1998] 7 MLJ 105, at page 114 and Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] 1 LNS 964, at page 40. [23] I find merits in the Defendant’s submission that if the Inter Partes Injunction is not granted, the Ex-Parte Injunction should as a matter of course be set aside. This is because in order for an Ex-Parte Injunction to 8 be granted, it, too, must satisfy the test for an Inter Partes Injunction. The only difference between the test for an Ex-Parte Injunction and an Inter Partes Injunction is that in addition to satisfying the test for Inter Partes Injunction, there are additional requirements for obtaining an injunction in a full and frank disclosure; and compliance with Order 29 rule 1(2A) of the Rules of Court 2012 for Ex-Parte Injunction application. [24] I agree with the Defendant that the burden to obtain an Ex-Parte Injunction is higher as compared to the burden to obtain an Inter Partes Injunction. As such, if the Plaintiff has failed to convince the court to grant an Inter Partes Injunction, the Ex-Parte Injunction ought to be set aside. It is akin to the argument that the greater includes the smaller. Whether the Ex-Parte Injunction ought to be set aside for failure of the Plaintiff to make a full and frank disclosure [25] Without in any way derogating from the position above, the Defendant further submitted that the Ex-Parte Injunction was irregularly obtained, as it was obtained without full and frank disclosure of material facts by the Plaintiff and for non-compliance with Order 29 rule 1(2A) of the Rules of Court 2012. [26] It is trite that the Plaintiff, in an Ex-Parte Injunction application is required to provide “any answer by the other party (or which he is likely to assert) to the claim or application” by reason of Order 29 r 1(2A)(d) of the Rules of Court 2012. The Plaintiff should have also disclosed to the Court “any facts which may lead the Court not to grant the application ex parte or at all” by reason of Order 29 rule 1(2A)(e) of the Rules of Court 2012. [27] Learned counsel for the Defendant further pointed out that the requirement of full and frank disclosure does not mean just exhibiting the 9 numerous letters to the affidavit but must specifically draw attention of the court to the letter(s) that is or are relevant to the case and must not mislead the Court by asserting bare allegations. See Bakmawar Sdn Bhd v Malayan Banking Berhad [1991] 2 CLJ (Rep) 323 at page 326 per Siti Norma Yaakob J (as she was then): “It is true that the defendant’s letter was exhibited to the plaintiff’s ex parte application but it is incumbent upon the plaintiff on an ex parte application of this nature to not only to make full disclosures but to also draw attention to all the relevant factors so as not to mislead the Court into making an order that it would not have necessarily made” (emphasis added) [28] In Arthur Anderson & Co v Interfood Sdn Bhd [2005] 2 CLJ 889 at page 906 (para f-i) it was observed that: “...He must identify the crucial points for and against the application and not rely on general statements and the mere exhibiting of numerous documents…” (emphasis added) [29] In this regard, the Defendant highlighted that the Plaintiff should have, but did not disclose the following facts to the Court:

The Plaintiff failed to make specific disclosure as to the existence of the arbitration agreements under Clause 16 of the Gissar Main Contract and Khauzak Main Contract (“Arbitration Agreements”).

The Plaintiff ought to have disclosed to the Court that an injunction cannot be granted in the present case to support a Writ Action filed in breach of the Arbitration Agreements. Had this been disclosed to the Court in compliance with Order 29 r 1(2A)(d) & (e) of the Rules of Court 2012, the Ex-Parte 10 Injunction could not have been granted in a Writ Action as it would have been in breach of the arbitration agreement.

The Injunction can only be granted in aid of arbitration pursuant to Section 11 of the Arbitration Act 2005. However, the Plaintiff clearly did not move the Court under Section 11 of the Arbitration Act 2005 as the Plaintiff did not initiate arbitration proceedings under the arbitration agreements and did not file an Originating Summons for injunction in aid of arbitration as required under Section 50 of the Arbitration Act 2005 read with Order 69 rules 2 and 4 of the Rules of Court 2012. [30] It was also submitted that the Plaintiff’s failure to expressly raise and refer this Court to the Arbitration Agreements was fatal in itself. The Plaintiff referred to Sabah Gas Industries Sdn Bhd v Trans Samudera Lines (S) Sdn Bhd [1993] 2 MLJ 396, page 406 where the High Court observed that the failure to disclose, among others, the arbitration clause in the underlying contract between the parties constitute non-disclosure of a material fact: “How crucial is non disclosure of material facts? Where a party makes an ex parte application for an injunction, that party must make full and frank disclosure of all material facts. (See Cocoa Processors Sdn Bhd v United Malayan Banking Corporation Bhd & Ors.) There was no real attempt to reveal the relevant provisions of the arbitration clause.” (emphasis added) [31] The Defendant also relied on the case of New Civilbuild Pte Ltd v. Guobena Sdn Bhd [1998] SGHC 214 at pages 733, 739-740 which is also a case on an application to restrain the beneficiary from making a demand on a performance bond. In that case, the plaintiff omitted from making 11 specific reference to a provision in the underlying contract at the ex-parte stage which could or reasonably be taken into account by the judge. The omission amounted to failure to make full and frank disclosure and the Court then set aside the Ex-Parte Injunction order. [32] As submitted by the Defendant in Dauphin Offshore Engineering & Trading Pte Ltd v The Private Office of HRH Sheikh Sultan bin Khalifa bin Zayed Al Nahyan [2000] 1 SLR(R) 117 at 124, para [22], the Singapore Court of Appeal agreed that the failure of the plaintiff in making full and frank disclosure is a justification to set aside an ex-parte interim injunction restraining the defendant beneficiary from making a demand on a bank guarantee. [33] There is merit in the Defendant’s submission that the failure by the Plaintiff to highlight the existence of the Arbitration Agreements and its effect on the Plaintiff’s Injunction Application in Enclosure 5 is tantamount to non-disclosure of a material fact and the Ex-Parte Injunction Order ought to be set aside on this score alone. [34] Moreover, the Plaintiff also did not disclose other material facts, and these are set out in full in paragraphs 12.1 to 12.4 of Enclosure 26 and paragraphs 11 to 15, and 18 to 19 of Enclosure 30. These facts include the very relevant notices/letters issued by the Defendant notifying the Plaintiff of the various breaches of the Gissar and Khauzak Main Contracts giving rise to the call on the Bank Guarantees and Warranty Guarantee i.e., the following documents:

Letters dated 30.7.2013, 22.6.2017, 31.8.2017 and 26.10.2017, evidencing the various breaches committed by the Plaintiff with regards to the terms of the Gissar Main Contract. See. Exhibit “5” of Enclosure 26.

Claim dated 12.12.2017, letters dated 29.6.2016, 15.7.2016 and 9.9.2016 for breaches of the Gissar Main Contract. See Exhibit “6” of Enclosure 26.

Claims dated 3.12.2014 and 2.9.2015 as well as letters dated 11.12.2014, 19.1.2016 and 30.8.2017, for breaches of the Khauzak Main Contract. See Exhibit “7” of Enclosure 26. [35] I agree that based on the aforesaid, the Ex-Parte Injunction must be set aside. Whether there is any prohibition against the Defendant seeking for a stay of proceedings pending arbitration and applying to set aside the Ex-Parte Injunction in a single application [36] The essence of the Plaintiff’s objection to this application for directions for assessment of damages is that the Defendant’s prior application in Enclosure 25 to stay the proceedings under section 10 Arbitration Act 2005 and followed by a consequential prayer for setting aside the Ex-Parte Injunction is legally unsustainable given its hybrid nature combining a stay under Section 10 of the Arbitration Act 2005 and a setting aside as a consequential order. [37] The Plaintiff referred to section 10 of the Arbitration Act 2005 which gives power to the Court to order "conditions as it deems fit” in granting a stay under the section. It was submitted however that the power of the Court in this regard is not unlimited, having regard to the following condition: a. Section 8 of the same act which provides that "Unless otherwise provided, no Court shall intervene in any of the matters governed by this Act”. In other words, the jurisdiction 13 and powers of the Court are to be found within the four corners of the Act; b. adopting the principle of ejusdem generis, it was submitted that the conditions that the Court can impose under the section must be limited to those which relate to the conduct of the arbitration and not otherwise (see The Arbitration Act 2005 by Sundra Rajoo And WSW Davidson para 10.11); and c. once the Court grants a stay, all further conduct of the proceedings are put to a stop and parties are precluded thereafter from taking any further step in the proceedings (see Halsbury's Laws of England Vol 37 para 437.) [38] Learned counsel for the Plaintiff argued that the Court does not allow hybrid applications to be made (Wagon Engineering Sdn Bhd v Sulaiman Buloh Semanjung Enterprise Sdn Bhd [1988] 2 CLJ (Rep) 533 and Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1995] 2 MLJ 851). The rationale it seems is that the test for staying an action under Section 10 of the Act is different from the test in setting aside an Ex-Parte Injunction and also any ad-interim order granted. The Plaintiff also contended that the Defendant’s only ground for setting aside is the allegation premised on the alleged breach of the arbitration clauses in the respective agreements parties have entered into. This Court has already held that the Ex-Parte Injunction should not have been granted as the application for the Inter Parte Injunction had been dismissed by another Court and that there has not been a full and frank disclosure of the material facts in the ex-parte application. 14 [39] The above two cases can be distinguished because when both an application for summary judgment and striking out are found in one application yielding ultimately the same result, the applicant must elect which application to proceed so that the defendant may be able to focus on the issues that truly matter to the Court rather than to have to fight the matter on two different fronts. [40] Here the application for stay of the proceedings and the setting aside of the Ex-Parte Injunction are very much alive and necessary and would not prejudice the Plaintiff in any way. [41] There would have been no necessity for the Defendant to file this application to stay the proceedings had the Plaintiff proceeded properly not by a writ action but by way of an Originating Summons under section 11 Arbitration Act 2005. [42] Having agreed that the proper procedure should be an application by Originating Summons under section 11 Arbitration Act 2005 learned counsel for the Defendant was gracious to agree to an Ad-Interim Injunction whilst waiting for the Originating Summons application to be heard without prejudice to their claiming for damages in the event the Ex-Parte Injunction was found to have been improperly granted and the Ad-Interim injunction was set aside. To avoid two concurrent proceedings on the same issue both parties had agreed to be bound in this Writ Action by the decision of the Court hearing the Originating Summons. [43] I agree with the Defendant that their setting aside application had to be filed as a consequential application to its stay application. If the procedure had been properly commenced under section 11 Arbitration Act 2005 there would have been no necessity for a stay of proceedings application. In other words the necessity of filing this stay application was 15 precisely because of a wrong procedure employed and engaged by the Plaintiff. [44] The Defendant, acting on an abundance of caution, had filed this setting aside of the Ex-Parte Injunction in one application as the stay application so that the Defendant will not be construed as having taken any steps in the proceedings under Section 10(1) of the Arbitration Act 2005 which reads: “(1) A court before which proceedings are brought in respect of a matter which is the subject of an arbitration agreement shall, where a party makes an application before taking any other steps in the proceedings, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.” [45] That is a perfectly legitimate reason and it causes no prejudice to the Plaintiff and if at all, it was an inconvenience caused by the Plaintiff in not in the first place proceeding under section 11 by way of an Originating Summons. [46] Learned counsel for the Defendant drew the Court’s attention to the case of Comos Industry Solution GMBH v. Jacob and Toralf Consulting Letrikon Sdn Bhd & Ors [2012] 4 MLJ 573 at page 580-581, the Court of Appeal observed as follows: “...Whether an action amounts to a step in the proceedings is determined by the nature of the action and whether it indicates an unequivocal intention to proceed with the suit and to abandon the right to refer the dispute to arbitration. An application is not a step in the proceedings, if it does not express the willingness of the defendant to go along with the determination of the court instead of 16 arbitration. A defendant who has specifically stated in the application or supporting affidavit that he intends to seek a stay is not estopped from asserting his right to invoke arbitration. An application, which is made in the event that the specific application for stay is unsuccessful, is not a step in the proceedings." [47] Learned counsel for the Defendant further emphasised that the Ex-Parte Injunction was made to restrain the Defendant from receiving monies under the Bank Guarantee, pending the disposal of the suit herein. In the suit herein, the Plaintiff had asked for a permanent injunction to restrain the Defendant from receiving monies under the Bank Guarantee when under the arbitration agreement this is a matter to be referred to arbitration. [48] The Defendant acted reasonably and properly to avoid taking any steps in the proceedings, and to preserve its position in respect of the arbitration agreement. Thus the Defendant had couched their application to set aside the Ex-Parte Injunction to be a consequential application to its application for stay pending arbitration. [49] I agree with the Defendant that it is a matter of practical utility, for this Court to consider the issue of stay pending arbitration and also setting aside together in one single application and make the appropriate order in a joint consideration of both, as both matters are inter-linked to one another. See View Esteem Sdn Bhd v Bina Puri Holdings Bhd [2018] 2 MLJ 22 at page 49. Therefore, there is nothing wrong with the Defendant applying for stay pending arbitration and also setting aside of the Ex-Parte Injunction in one application in Enclosure 25. [50] In Kirames Sdn Bhd v Federal Land Development Authority [1991] 2 MLJ 198, the High Court held that even after a stay of proceedings had been obtained pending reference to arbitration, the defendant there 17 was still at liberty to proceed with their earlier application filed to set-aside the Ex-Parte Injunction and for damages to be assessed as a result of the injunction. The High Court referred to Roussel-Uclaf v GD Searle & Co Ltd [1978] FSR 95 and held that the requirement that the defendant must not take any other steps on the proceedings does not prevent the defendant from applying to set aside an Ex-Parte Injunction. In the Roussel-Uclaf’s case (supra) at page 105 it was held that the defendant was merely parrying a blow by the plaintiff, particularly when the attack consisted of asking for an interlocutory injunction. [51] It was not a positive procedural act by way of an offence on the part of the defendant. There the first defendant had defended the plaintiff’s application for an injunction and the injunction was refused. The first Defendant together with the second defendant who had since been served with the writ applied for stay of the proceedings under the UK Arbitration Act 1975. [52] Likewise when a similar issue came up for consideration by the Supreme Court in Seloga Jaya Sdn Bhd v Pembenaan Keng Ting (Sabah) Sdn Bhd [1994] 2 MLJ 97 at page 112, Edgar Joseph Jr SCJ (as he then was) referred to Roussel-Uclaf’s case (supra) where Graham J said at page 757 as follows: “Such a remedy [for an interlocutory injunction] against a defendant might well be necessary whether the action was ultimately stayed or not, in order to preserve, for example, the property of the subject of the action in the meantime, and, as a practical matter, in such a case it would not be of importance whether the application for stay was made before, at the same time as or after the application for an injunction. Here it is not suggested that the plaintiffs were in 18 any way embarrassed or taken by surprise by the making of the application to stay at the date at which it was made and I see no reason to Searle (U.K.) in that respect.....” (emphasis added) [53] Had the Defendant applied in 2 separate applications they would run the risk of being accused of taking further steps in the proceedings. It is precisely to avoid this risk that the Defendant has prayed for the setting aside as a “consequential” prayer to the stay application. [54] I cannot see how the Plaintiff has been prejudiced in any way as a result of the two applications for stay of proceedings and setting aside of the injunction to be in a single application. [55] As a result of the discharge of the Ad-Interim Injunction, the Defendant is entitled to an assessment of damages. See: Daya CMT v Yuk Tung Construction [2016] 6 MLRH 263 at page 301 and Qatar Islamic Bank v Asian Finance Bank Bhd & Ors [2015] 7 MLJ 445 at page 476. Although the Ex-Parte Injunction has lapsed, this Court would still determine whether the Ex-Parte Injunction was properly obtained and since the Inter Partes Injunction was not granted, the Ex-Parte Injunction ought not to be granted in the first place. [56] Further the Plaintiff has failed to make full and frank disclosure in applying for the Ex-Parte Injunction. Finally there is no prohibition against the Defendant seeking for stay pending arbitration and setting aside of Enclosure 5 in one single application. [57] To accede to the Plaintiff’s objection would mean to penalize the Defendant. It would mean that the Defendant would just have to suffer silently if the Ex-Parte Injunction and the Ad-Interim Injunction are set aside or discharged merely because the Plaintiff had proceeded using a wrong procedure by way of a Writ Action and not an Originating Summons under 19 section 11 Arbitration Act 2005 and that the stay once granted would be the end of the Writ Action and the Court is thereafter functus with no power to proceed to assess damages. [58] It would be to punish the innocent and to reward the offending party. Rules of Court are meant to be handmaid and not a tough taskmaster wielding a cane as it were for every minor infraction of the rules. Here there is no breach of the rules and this Court must resist every temptation to apply it in a manner that would cause undue prejudice to the innocent party. Pronouncement [59] For all the reasons given above I had granted an order in terms of Enclosure 38 with costs of RM3,000.00 to the Defendant/Applicant and dismissed the Plaintiff’s objection. Dated: 30 November 2018. - signed - LEE SWEE SENG Judge Construction Court High Court , Kuala Lumpur 20 For the Plaintiff : Michael Chow (Messrs Michael Chow) For the Defendant : Jack Yow Pit Pin together with Daphne Koo Su Mei and Melvin Ng Yet Ting (Messrs Rahmat Lim & Partners) Date of Decision: 5 September 2018.