LIM Koo Tiek v Tan Bak Lee (Mengamalkan Sebagai Tan Bak Lee & Co.) (P-02(IM)(NCvC)-907-05/2025)

We will refer to the parties as they were in the High Court.

The defendant (Defendant) is a practising Advocate and Solicitor (A&S) who acted for the plaintiff (Plaintiff) in the sale of the Plaintiff's land (Sale).

On behalf of the Plaintiff, the Defendant had received the balance proceeds of the Sale.

On 15.1.2020, the Defendant issued to the Plaintiff a post-dated MBSB Bank Berhad's (MBSB) cheque dated 31.1.2020 (Defendant's Post-Dated Cheque) for a sum of RM789,702.96 (Sum).

The Plaintiff was entitled to receive the Sum under the Sale.

When the Plaintiff banked in the Defendant's Post-Dated Cheque on 31.1.2020, the Plaintiff discovered that the Defendant had instructed MBSB to stop payment for the Defendant's Post-Dated Cheque.

On 4.2.2020, after the Defendant's Post-Dated Cheque was dishonoured-

the Plaintiff met the Defendant;

the Defendant informed the Plaintiff that the Defendant did not have sufficient money in the Defendant's "Client's Account" to pay the Sum to the Plaintiff;

the Defendant issued two cheques in favour of the Plaintiff (Defendant's 2 Cheques), namely-

a post-dated cheque dated 16.2.2020 for the Sum; and

a cheque dated 3.2.2020 for an amount of RM2,632.34 (as interest on the Sum which was due to the Plaintiff from the Defendant); and

the Plaintiff rejected the Defendant's 2 Cheques and demanded immediate payment of the Sum from the Defendant. The Defendant however refused to pay the Sum immediately to the Plaintiff. B. Court proceedings

On 6.2.2020, the Plaintiff filed this suit against the Defendant (This Suit). In This Suit-

with regard to the Sum, the Plaintiff obtained an ex parte Mareva injunction from the High Court against the defendant (Mareva Injunction);

the Plaintiff's solicitors served the Mareva Injunction on 14 banks [so as to freeze any sum of money in the Defendant's bank account(s)] [Service of Mareva Injunction (Banks)];

the Defendant applied successfully to the High Court to set aside the Mareva Injunction [High Court's Setting Aside Order (Mareva Injunction)]. The High Court also ordered an assessment of any loss which had been suffered by the Defendant due to the Mareva Injunction [Assessment (Mareva Injunction)]. No written judgment was provided by the High Court in respect of the High Court's Setting Aside Order (Mareva Injunction) and the Assessment (Mareva Injunction); and

the Defendant filed a counterclaim against the Plaintiff on the ground that the Service of Mareva Injunction (Banks) had libelled the Defendant (Counterclaim).

With regard to the Sum-

the Plaintiff applied for summary judgment regarding the Sum in the High Court against the Defendant;

the High Court granted summary judgment for the Sum with costs against the Defendant [High Court's Summary Judgment (Sum)]; and

the Defendant's appeal to the Court of Appeal against the High Court's Summary Judgment (Sum) was dismissed with costs.

In respect of the Assessment (Mareva Injunction) -

on 15.2.2021, the learned Deputy Registrar of the High Court (DR) dismissed the Assessment (Mareva Injunction) with costs [DR's Assessment Decision (Mareva Injunction)];

the Defendant appealed to the High Court Judge against the DR's Assessment Decision (Mareva Injunction) [Defendant's Appeal (Mareva Injunction)]; and

with regard to the Defendant's Appeal (Assessment), on 13.12.2021, the learned Judicial Commissioner (as he then was) （ $ 1^{st} $ Judge) decided as follows-

the Defendant's Appeal (Assessment) was allowed;

the Assessment (Damages) was fixed on 28.12.2021 before the Judge (Tarikh taksiran gantirugi ditetapkan di hadapan Hakim pada 28/12/2021); and

costs shall be fixed after the completion of the Assessment (Damages) [1 $ ^{st} $ Judge's Assessment Decision (Mareva Injunction)].

This Suit was taken over by another learned Judicial Commissioner (as he then was) ( $ 2^{n d} $ Judge).

Astoundingly, the $ 2^{\mathrm{n d}} $ Judge conducted the Counterclaim based solely on affidavit evidence adduced by both the Plaintiff and Defendant (Affidavits). On 6.2.2024, premised on the Affidavits, the 2 $ ^{nd} $ Judge decided as follows:

the CC was allowed;

the loss of the Defendant's reputation and business due to the Service of Mareva Injunction (Banks), would be assessed by the High Court [Assessment (Libel)]; and

costs in the cause [2 $ ^{n d} $ Judge's Decision (Libel)].

The $ 2^{\mathrm{n d}} $ Judge conducted the Assessment (Libel) and decided as follows on 22.4.2025:

a sum of RM330,000.00 was assessed by the $ 2^{n d} $ Judge to be paid by the Plaintiff to the Defendant [Damages Sum (Libel)];

in accordance with a consent order dated 13.12.2021 entered into by both the Plaintiff and Defendant [Consent Order (13.12.2021)] , the Damages Sum (Libel) shall be set off from the High Court's Summary Judgment (Sum); and

costs of RM10,000.00 shall be paid by the Plaintiff to the Defendant (subject to allocatur fee) [2 $ ^{n d} $ Judge's Assessment (Libel)]. C. Proceedings in the Court of Appeal

The Plaintiff filed the following two appeals to the Court of Appeal (2 Appeals):

Civil Appeal no. P-02(NCvC)(W)-399-03/2024 was lodged against the $ 2^{n d} $ Judge's Decision (Libel) （ $ 1^{s t} $ Appeal); and

the Plaintiff filed Civil Appeal no. P-02(IM)(NCvC)-907- 05/2025 against the $ 2^{nd} $ Judge's Assessment (Libel) $ (2^{nd} $ Appeal).

In these 2 Appeals, the Defendant acted in person.

When the 2 Appeals were first heard in the Court of Appeal, we posed the following three questions to the Plaintiff's learned counsel and Defendant:

with regard to the $ 1^{\mathrm{st}} $ Judge's Assessment Decision (Mareva Injunction), whether the $ 1^{\mathrm{st}} $ Judge had the jurisdiction and power to order the Assessment (Damages) to be heard on 28.12.2021;

could the $ 2^{\mathrm{nd}} $ Judge order or direct on 6.2.2024 a trial of the Counterclaim by affidavits under the Evidence Act 1950 (EA) and Rules of Court 2012 (RC)?; and

notwithstanding the Consent Order (13.12.2021), whether the $ 2^{\mathrm{nd}} $ Judge could order the Damages Sum (Libel) to be set off from the High Court's Summary Judgment (Sum) (Court of Appeal's 3 Issues).

In accordance with the second rule of natural justice, the Plaintiff's learned counsel and Defendant were given a right to file written submissions on the Court of Appeal's 3 Issues [Written Submissions (Court of Appeal's 3 Issues)]. For this purpose, the hearing of the 2 Appeals was postponed to a date convenient to the Plaintiff's learned counsel and Defendant [after the filing of the Written Submissions (Court of Appeal's 3 Issues)].

On the second hearing date of these 2 Appeals, in addition to our perusal of the Written Submissions (Court of Appeal's 3 Issues)], we had heard oral submissions by the Plaintiff's learned counsel and Defendant on the Court of Appeal's 3 Issues. D. Main Question

In addition to the Court of Appeal's 3 Issues, the main question to be decided in these 2 Appeals was whether the Service of Mareva Injunction (Banks) had libelled the Defendant, the sole basis of the Counterclaim. OUR DECISION E. Could the Service of Mareva Injunction (Banks) libel the Defendant?

Sections 4, 7(2) and 14(2) of the Courts of Judicature Act 1964 (CJA) provide as follows: "s 4. Provision to prevent conflict of laws In the event of inconsistency or conflict between [CJA] and any other written law other than the Constitution in force at the commencement of this Act, the provisions of this Act shall prevail. s 7(2) All writs, summonses, warrants, orders, rules, notices, and other processes whatsoever, whether civil or criminal, issued or made by or by the authority of the Court respecting any cause or matter within its jurisdiction shall have full force and effect and may be served or executed anywhere within Malaysia. s 14(2) No officer of any court or other person bound to execute the lawful warrants or orders of any Judge or other person acting judicially shall be liable to be sued in any civil court for the execution of any warrant or order which he would be bound to execute if within the jurisdiction of the person issuing the same." (emphasis added).

When the Service of Mareva Injunction (Banks) was effected, the Mareva Injunction was still in force and had not been set aside by the Defendant in the High Court. Furthermore, the purpose of the Service of Mareva Injunction (Banks) was to freeze the Defendant's funds in the 14 banks, namely, to carry out the objective of the Mareva Injunction. In other words, there was nothing sinister about the Service of Mareva Injunction (Banks). Consequently, we have no hesitation to decide that if the Mareva Injunction was valid at the time of the Service of Mareva Injunction (Banks), the Service of Mareva Injunction (Banks) could not defame the Defendant. We rely on the following reasons:

in s 7(2) CJA, Parliament has employed a mandatory term "shall". According to s 7(2) CJA, the Mareva Injunction "shall have full force and effect and may be served ... anywhere within Malaysia". As such, the Service of Mareva Injunction (Banks) was authorised by s 7(2) CJA;

s 14(2) CJA provides a complete defence for the Plaintiff to the Counterclaim by stating that "No ... other person bound to execute the lawful ... orders of any Judge ... shall be liable to be sued in any civil court for the execution of any ... order";

in Shilashshree Shirley Gomez v Raymond Shilendran a/l Simon [2024] 5 MLJ 308, at [20(b)], the Court of Appeal had decided as follows-According to s 4 CJA, in the event of inconsistency between CJA and any other written law other than the [Federal Constitution], the provisions of the CJA shall prevail (emphasis added). As decided in Shilashshree, by virtue of s 4 CJA, ss 7(2) and 14(2) CJA "shall prevail" over all other written law (save for the Federal Constitution); and

if the service of a valid court's judgment or order (Judgment/Order) amounts to a defamation of a person named in the Judgment/Order, this will defeat the mandatory provisions in ss 4, 7(2) and 14(2) CJA.

With respect, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Judges had failed to consider the mandatory effect of ss 4, 7(2) and 14(2) CJA in this case. The omission to give effect to these mandatory provisions in ss 4, 7(2) and 14(2) CJA meant that the following three decisions of the High Court are nullities ab initio:

the $ 1^{\mathrm{st}} $ Judge's Assessment Decision (Mareva Injunction);

the $ 2^{\mathrm{nd}} $ Judge's Decision (Libel); and

the $ 2^{\mathrm{nd}} $ Judge's Assessment (Libel) (High Court's 3 Decisions).

The Plaintiff had filed the 2 Appeals to set aside the $ 2^{\mathrm{nd}} $ Judge's Decision (Libel) and $ 2^{\mathrm{nd}} $ Judge's Assessment (Libel). The Defendant had contended that the Plaintiff did not appeal to the Court of Appeal against the $ 1^{\mathrm{st}} $ Judge's Assessment Decision (Mareva Injunction). As such, according to the Defendant, the $ 1^{\mathrm{st}} $ Judge's Assessment Decision (Mareva Injunction) was final and res judicata as against the Plaintiff. We are not able to accept the above submission As the High Court's 3 Decisions are void ab initio, the Plaintiff was not required in law to apply to the High Court to set aside the High Court's 3 Decisions. Nor was the Plaintiff bound to appeal to the Court of Appeal against the High Court's 3 Decisions. In this regard, we cite the following judgment of Eusoffe Abdoolcader J (as he then was) in the Federal Court case of Eu Finance Bhd v Lim Yoke Foo [1982] 2 MLJ 37, at 39 to 40: "The general rule is that where an order is a nullity, an appeal is somewhat useless as despite any decision on appeal, such an order can be successfully attacked in collateral proceedings; it can be disregarded and impeached in any proceedings, before any court or tribunal and whenever it is relied upon - in other words, it is subject to collateral attack. In collateral proceedings the court may declare an act that purports to bind to be non-existent. In Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, 736, Lord Diplock LJ (now a Law Lord) said (at page 736) that 'it has been long laid down that where an order is a nullity, the person whom the order purports to affect has the option either of ignoring it or of going to the court and asking for it to be set aside'. Where a decision is null by reason of want of jurisdiction, it cannot be cured in any appellate proceedings; failure to take advantage of this somewhat futile remedy does not affect the nullity inherent in the challenged decision. The party affected by the decision may appeal 'but he is not bound to (do so), because he is at liberty to treat the act as void' [Birmingham (Churchwardens and Overseers) v Shaw (1849) 10 QB 868, 880, 116 ER 329 at page 880 (per Denman CJ)]. In Barnard v National Dock Labour Board [1953] 2 QB, 34 it was said that, as a notice of suspension made by the local board was a nullity, 'the fact that there was an unsuccessful appeal on it cannot turn that which was a nullity into an effective suspension' (at page 34 per Singleton LJ). Ridge v Baldwin [1964] AC 40 is to the same effect. Lord Denning said in Director of Public Prosecutions v Head [1959] AC 83 (at page 111) that if an order was void, it would in law be a nullity and there would be no need for an order to quash it as it would be automatically null and void without more ado. Lord Denning as Master of the Rolls so held too in Regina v Paddington Valuation Officer & Anor, Ex parte Peachey Property Corporation Ltd (No 2) [1966] 1 QB 380 (at page 402), 402. The judgment of this court in Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155, 157 refers (at page 157) to the decision of the House of Lords in London & Clydeside Estates Ltd v Aberdeen District Council & Anor [1980] 1 WLR 182, 189 and a passage in the judgment of the Lord Chancellor, Lord Hailsham of St. Marylebone (at page 189) where he refers to a spectrum of possibilities as the legal consequence of non-compliance with statutory requirements and speaks of one extreme where there has been such an outrageous and flagrant violation of a fundamental obligation that what has been done may be safely ignored and treated as having no legal consequence and in the event of any reliance sought thereon the party affected is entitled to use the defect simply as a shield or defence without having taken any positive action of his own." (emphasis added). The above judgment of the Federal Court had been affirmed by Lord Brightman on appeal to the Privy Council (our highest court then) in Lim Yoke Foo v Eu Finance Bhd [1985] 1 MLJ 17, at 20. F. Whether the 2 $ ^{nd} $ Judge could order or direct a trial of the CC for libel based solely on affidavits

We reproduce below -

ss 59 and 60(1)(a) to (d) EA; and

O 38 r1 RC s 59. Proof of facts by oral evidence All facts, except the contents of documents, may be proved by oral evidence. s 60. Oral evidence must be direct

Oral evidence shall in all cases whatever be direct, that is to say-

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. RC O 38 r1 General rule: Witness to be examined orally Subject to the provisions of these [RC] and of the [EA] and any other written law relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses in open Court." (emphasis added).

This Suit was commenced by the Plaintiff by way of writ. Hence, is clear that the Counterclaim could only be disposed of by way of oral evidence to be adduced at a trial. This decision is premised on the following reasons:

s 59 EA has provided that all facts, except the contents of documents, may be proved by oral evidence. Additionally, s 60(1) EA has expressly stated that oral evidence, "shall in all cases whatever be direct" as provided in paragraphs (a) to (d) of s 60(1) EA. Our legislature has employed a mandatory term "shall" in s 60(1) EA. In Public Prosecutor v Yuvaraj [1969] 2 MLJ 89, at 90, an appeal from Malaysia, Lord Diplock decided in the Privy Council (our apex court then) that notwithstanding the name of the EA as an "Act", the EA is a code of law which is intended by our Parliament to be comprehensive. Hence, ss 59 and 60(1)(a) to (d) EA are codified statutory provisions which mandatorily require the Counterclaim to be decided by oral evidence (not by Affidavits); and

O 38 r 1 RC has explicitly stipulated that O 38 r 1 RC is subject to, among others, the EA, namely, ss 59 and 60(1)(a) to (d) EA {Exception [O 38 r 1 RC]}. Subject to the Exception [O 38 r 1 RC], O 38 r 1 RC has expressly provided that "any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses in open Court". Based on the mandatory written law provisions in ss 59 and 60(1)(a) to (d) EA read with O.38 r1 RC (Mandatory Written Law Provisions), the $ 2^{\mathrm{nd}} $ Judge could not have lawfully disposed of the Counterclaim by way of the Affidavits. If otherwise, all original actions begun by writ and counterclaims can be simply disposed of by way of affidavits without a trial! It is trite law that courts should avoid "trials by affidavits". Needless to say, the credibility of a witness can only be tested by way of cross-examination in open court. Lastly, a trial by affidavits will deprive the court of the audio-visual advantage to assess the weight of the oral evidence of witnesses and to determine their credibility.

We have not overlooked the Defendant's contention that both the Plaintiff and Defendant had consented to the $ 2^{n d} $ Judge's disposal of the Counterclaim based solely on the Affidavits. Consequently, the Defendant submitted that the Plaintiff is now estopped from challenging the validity of the $ 2^{n d} $ Judge's disposal of the Counterclaim by way of Affidavits only. We are not able to accede to the above contention by the Defendant because parties cannot consent to waive the imperative effect of the Mandatory Written Law Provisions. Nor can the doctrine of equitable estoppel bar the application of the Mandatory Written Law Provisions. In this regard, we rely on the judgment of the Court of Appeal in Sabah Development Bank Bhd v TYL Land & Development Sdn Bhd [2024] 6 MLJ 433, at [46(1)] , as follows: "[46] With respect, the learned JC [Judicial Commissioner] committed an error of law in deciding that the Bank was estopped from denying the contents of the 4 PODs [Proofs of Debt] in this case (4th Legal Error). The 4th Legal Error is as follows:

the doctrine of equitable estoppel is premised on case law and cannot bar the effect of s 524(1)(a), (b) and (2) CA [Companies Act 2016] read with Paragraphs 13 and 15 [paragraphs 13 and 15 of Schedule C to the Insolvency Act 1967]. It is decided in the High Court case of Jambatan Merah Sdn Bhd (in liquidation) v Public Bank Bhd [2016] 1 CLJ 811, at [78], as follows- [78] In respect of the Defendant's purported right to exercise remedy as a chargee under s 271(1)(a) NLC, it is trite law that there can be no application of the issue estoppel doctrine against the operation of a statutory provision (in this case, the application of s 270(1)(a) NLC). I cite the following cases:

in Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd [1991] 1 MLJ 404, at 407, Hashim Yeop Sani CJ (Malaya) held in the Supreme Court as follows- "On the question of issue estoppel we agree with the learned judge that on the facts of this case the appellants cannot invoke the doctrine of issue estoppel. There can be no estoppel as against statutory provisions." (emphasis added);

Thomas CJ decided as follows in the Court of Appeal of the Federated Malay States in Puran Singh v Kehar Singh [1939] 1 MLJ 71, at 75- "The main question argued at the appeal was that the learned trial Judge having held that the registration of Kehar Singh as proprietor of certain lands had been obtained by means of an insufficient or void instrument, viz., an invalid power of attorney, and that it was in consequence void under section 42 (iii) of the Land Code, he was wrong in holding that the plaintiff was estopped by his conduct from objecting to the registration. In support of this contention he cited Borrow's case (1880) 14 ChD 432 in which it is stated by Bacon, V.C., in the course of his judgment that: "the doctrine of estoppel cannot be applied to an Act of Parliament. Estoppel only applies to a contract inter partes and it is not competent to parties to a contract to estop themselves or anybody else in the face of an Act of Parliament." This view is followed in the case of Abdul Aziz v Kanthen Mallik 38 ILR Cal 512 515 in which at page 515 a long list of authorities has been set out. The Court there decided that it was not prepared to accede to the argument that the principle of estoppel overrides the provisions of either section 78 of the Land Registration Act or section 60 of the Bengal Tenancy Act. ... So far as this is an argument on the question of estoppel it cannot in my opinion succeed, since it is only another way of saying that acts of the parties inter se can amount to an estoppel in respect of an Enactment." (emphasis added); and

in Re Salvage Engineers Ltd [1962] 128 MLJ 438, at 440, Ong J (as he then was) held in the High Court "There can be no estoppel against the operation of a statute." ..." (emphasis added). G. Could the $ 2^{\mathrm{nd}} $ Judge set off the Damages Sum (Libel) from the High Court's Summary Judgment (Sum)?

In the following judgment of the Federal Court in Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157, at 160 and 161, Salleh Abas LP had decided as follows: "A set-off is a cross-claim for a sum of money by a defendant against a plaintiff's claim for another sum of money for which the defendant is being sued. A cross-claim is not necessarily a set off, merely because the word used in the pleading is "set-off". Whether or not the plea is a set-off it has to be determined as a matter of law and substance. Hanak v Green [1958] 2 QB 9, 26. A cross-claim which is accepted as a defence of set off has the effect of extinguishing either the whole or part of the plaintiff's claim. See In re A Bankruptcy Notice [1934]] Ch 431, 437. But to constitute a set-off the sum of money meant as a cross-claim must from its nature and quality be such that it is proper to be dealt with as a defence to the plaintiff's claim and not as a separate cause or matter. At common law a right of set-off was not recognized despite the fact that a defendant had a valid claim against a plaintiff. Thus, in order to prevent imprisonment of such a defendant, two statutes, known as Statutes of Set-off, were passed in 1728 and 1734. Although these statutes and the subsequent statutes were repealed, the principle has been preserved by successive statutes even to this day. In addition to the statutory set-off, the court of equity has all along been in the habit of allowing a defendant to restrain a plaintiff from proceeding at law where in view of the defendant's cross-claim, the court thinks that it is unjust for the plaintiff to proceed with his suit at law. This is known as "equitable set-off" and it operates as Lord Cottenham, L.C. said where there is an equity which goes to impeach the title of the legal demand. Rawson v Samuel (1841) Cr & Ph 161, 178; 41 ER 451. The fusion of the law and equity in 1873 does not affect this principle either. We have no statutes dealing with a defence of set-off as are available in the United Kingdom. Neither have the United Kingdom statutes on the subject been incorporated in our Civil Law Act 1956 which deals with the reception of English law in this country. Section 3 (1) of this Act only enacts that "the Court shall, in West Malaysia or any part thereof, apply the Common Law of England and the rules of equity as administered in England on the 7th day of April, 1956". Clearly, equitable set-off is included in the expression "rules of equity" which the Court is required to apply under the section. But the legal set-off which is based on statute is in no way included in the expression "the Common Law of England" which we are required to apply. Thus, there being no Malaysian Statutes comparable to the United Kingdom Statutes on the subject, we therefore hold that only equitable and not legal set-off is part of our law, and consequently the court can only deal with an equitable set-off." (emphasis added).

It is clear from Permodalan Plantations that Malaysian law-

does not provide for a legal and/or statutory set-off; and

only recognises an equitable set-off. A party (X) can rely on an equitable set-off against a claim by another party (Y) if -

the "nature and quality" of X's claim against Y-

constitutes a defence against Y's claim; and

(ii) is not a matter which is separate from Y's claim; and

it is unjust and/or inequitable for Y to proceed with Y's claim against X without considering X's claim.

In this case, we are of the view that the Counterclaim could not constitute an equitable set-off against the High Court's Summary Judgment (Sum) because -

the Plaintiff's original action against the Defendant (Original Action) was due to the fact that the Defendant was the Plaintiff's A&S for the Sale and the Defendant had received the Sum on behalf of the Plaintiff. The Defendant's Counterclaim was however based on an alleged libel of the Plaintiff due to the Service of Mareva Injunction (Banks). Accordingly, the "nature and quality" of the Counterclaim could not in any manner constitute a defence against the Original Action. In fact, the Counterclaim was a matter which was entirely separate from the Original Action; and

it was just and/or equitable for the Plaintiff to proceed with the Original Action against the Defendant without considering the Counterclaim. In fact, the High Court's Summary Judgment (Sum) had been affirmed on appeal to the Court of Appeal.

Notwithstanding our decision in the above paragraph 29, both the Plaintiff and Defendant had recorded the Consent Order (13.12.2021). Consequently, the $ 2^{\mathrm{nd}} $ Judge could set off the Damages Sum (Libel) from the High Court's Summary Judgment (Sum) based solely on the Consent Order (13.12.2021). Having said that, based on the reasons stated in the above Parts E and/or F, we unhesitatingly set aside the High Court's 3 Decisions in this case.

Premised on the above reasons-

the $ 1^{\mathrm{st}} $ Appeal is allowed with the following order-

the $ 2^{\mathrm{nd}} $ Judge's Decision (Libel) is set aside;

the DR's Assessment (Mareva Injunction) is restored; and

costs in an amount of RM40,000.00 shall be paid by the Defendant to the Plaintiff with regard to the proceedings in the Court of Appeal and High Court (subject to allocatur fee); and

we allow the $ 2^{\mathrm{nd}} $ Appeal and order as follows-

the $ 2^{\mathrm{nd}} $ Judge's Assessment (Libel) is set aside; and

the Defendant shall pay RM40,000.00 to the Plaintiff as costs here and below (subject to allocatur fee).

A draft copy of this judgment (Draft) had been forwarded to Evrol Mariette Peters and Mohd. Radzi bin Abdul Hamid JJCA. Both my learned sister and brother had agreed with the Draft.

We end this judgment with a reminder that a court order against a defendant or respondent (defendant/respondent) which is served on any third party, cannot, in itself, amount to a libel of the defendant/respondent. DATE: 29 JUNE 2026 WONG KIAN KHEONG Judge Court of Appeal For the 2 Appeals Counsel for the Appellant: Mr. Chan Suay Hwa (Messrs S H Chan) Counsel for the Respondent: Mr. Tan Bak Lee (acted in person)