Muehlbauer Technologies Sdn. Bhd. (dalam Likuidasi) v Muehlbauer Holding Ag (MA-22NCvC-3-03/2025)

MUEHLBAUER HOLDING AG (No. Syarikat: HRB 14419)

GERHARD GREGORI (No. Pasport: CFVC5J8ML)

MOHAMED SULAIMAN BIN SULTAN SUHAIBUDDEEN (No. K/P: 741102-71-5057

MB AUTOMATION (MALAYSIA) SDN BHD (No. Syarikat: 202001001583[1357902-M])

SEKAR A/L RAMASAMY (No. K/P: 720730-04-5071) ... DEFENDANTS GROUNDS OF DECISION (The Plaintiff's request for leave to file Further Affidavits in Reply to Enclosure 160 and Enclosure 161) A. INTRODUCTION [1] The matter for determination is a case-management request by the Plaintiff for leave to file Further Affidavits in Reply to two affidavits filed by the First and Second Defendants Enclosure 160 and Enclosure 161 respectively said by the Plaintiff to contain assertions raised for the first time in those affidavits. The request is opposed by the First and Second Defendants. [2] The request arises within two pending interlocutory applications. By Enclosure 68, the First Defendant applies to set aside service of the cause papers upon it and to dispute the jurisdiction of this Court. By Enclosure 69, the Second Defendant applies for substantially the same relief. Enclosures 68 and 69 both stand fixed for hearing before me on 23 September 2026. Neither Enclosure 68 nor Enclosure 69 is before me for substantive determination, and nothing in these grounds touches the merits of either application. [3] The exchange of affidavits in respect of Enclosures 68 and 69 had, on the parties' common account, been treated as closed following two case-management reviews. The present controversy was precipitated by the filing of Enclosure 160 and Enclosure 161 on 3 June 2026 the affidavits intended to bring that exchange to a close which the Plaintiff contends introduced new factual matter. [4] The request, the objections to it, and the Plaintiff's response are contained in an exchange of letters: the Plaintiff's letter of 11 June 2026 (Enclosure 162), the First Defendant's letter of 15 June 2026 (Enclosure 163), the Second Defendant's letter of 15 June 2026 (Enclosure 164), and the Plaintiff's reply of 15 June 2026 (Enclosure 165). That a request of this kind is made and resisted by letter accords with the ordinary practice governing case-management matters, and the parties have been heard upon it. [5] The real controversy is narrow. It is whether the matters relied upon by the Plaintiff are genuinely new assertions of fact which can be answered only by affidavit, or whether they are objections to evidence and arguments which may properly be reserved to, and dealt with at, the hearing of Enclosures 68 and 69. The central issue is the proper exercise of the Court's discretion to permit a further affidavit after the conventional exchange has been treated as closed. B. MATERIAL FACTS AND PROCEDURAL HISTORY [6] The Plaintiff is a company in liquidation. It commenced this action by Writ of Summons and Statement of Claim, both dated 19 March 2025, against five Defendants. The First Defendant is incorporated in Germany; the Second Defendant is a German citizen having an address at Cham, Germany. [7] On 21 April 2025 the Plaintiff obtained an order for leave to serve the notice of writ out of the jurisdiction. The Notice of Writ for service out of the jurisdiction is dated 3 June 2025; a request for service of documents out of the jurisdiction is dated 21 July 2025; and a Notice of Renewal of Writ is dated 29 August 2025. Service upon the First and Second Defendants is said to have been effected on or about 17 December 2025 through the German judicial authorities, by way of the Local Court of Cham. [8] By Enclosure 68 (dated 20 January 2026) the First Defendant applied to set aside service and to dispute jurisdiction; by Enclosure 69 (also dated 20 January 2026) the Second Defendant applied for like relief. The grounds, in summary, are that service through the German judicial authorities did not comply with Order 11 rule 6(1) of the Rules of Court 2012 and was contrary to German law, in particular the British-German Legal Assistance Convention 1928; that the leave order of 21 April 2025 and the request of 21 July 2025 did not comply with Order 11; that no renewed writ was served; that this Court has no jurisdiction over the First and Second Defendants; and that Malaysia is not the proper forum. The merits of those grounds are not before me. [9] The affidavits material to the present request, so far as the record discloses, are these. The First Defendant's affidavit in support affirmed on 27 January 2026 is Enclosure 87, and its affidavit in reply affirmed on 1 April 2026 is Enclosure 133. The Second Defendant's affidavit in support is Enclosure 89, and his affidavit in response dated 1 April 2026 is Enclosure 139. The Plaintiff filed affidavits in reply dated 27 February 2026 Enclosure 110 in answer to the First Defendant and Enclosure 113 in answer to the Second Defendant. The Plaintiff's further affidavit in reply ("AIR 2") dated 6 May 2026 is Enclosure 150, to which the Plaintiff exhibited Exhibit MBT-35 and the expert opinion of Dr Tilman SchultheiB (Enclosure 151). The Second Defendant relies upon the opinion of Professor Dutta dated 22 May 2026 (Enclosure 159); the First Defendant likewise relies upon Professor Dutta's opinion of the same date. [10] On 3 June 2026 the First Defendant filed its Affidavit in Reply (2) (Enclosure 160) and the Second Defendant filed his Affidavit in Response (2) (Enclosure 161). As recorded in the Plaintiff's letter of 15 June 2026 (Enclosure 165), these were served on the Plaintiff's solicitors by email the same evening Enclosure 160 at 6.08pm and Enclosure 161 at 7.01pm. [11] Two case-management reviews bear upon the request. At the e-Review on 28 April 2026, this Court indicated that, upon the filing of the Defendants' Affidavits in Reply (2), the exchange of affidavits would be closed, and that any objection concerning the affidavits filed might be raised in submission and at the hearing. At the e-Review on 4 June 2026, the First and Second Defendants confirmed that the exchange of affidavits between themselves and the Plaintiff was complete; the Plaintiff did not then seek leave to file any further affidavit. These matters are recorded in the letters at Enclosures 163 and 164 and are not in dispute. [12] The matters which the Plaintiff identifies in Enclosure 162 as having been raised for the first time in Enclosure 160 and Enclosure 161, and which it seeks leave to answer, are three in substance. First, that Exhibit MBT-35 — exhibited by the Plaintiff in its own Enclosure 150 — contains documents not produced in the Plaintiff's earlier affidavits in reply of 27 February 2026 (Enclosure 160 paragraph 5.1, referring to Enclosure 110; Enclosure 161 paragraph 6(a), referring to Enclosure 113). Second, that Exhibit MBT-35 contains uncertified English translations of German-language documents (Enclosure 160 paragraph 5.2; Enclosure 161 paragraph 6(b)). Third, that an application has been made to the Higher Regional Court of Nuremberg to review the actions of the German judicial administration (Enclosure 160 paragraph 6). [13] It is common ground, as the Plaintiff observes in Enclosure 165, that the First and Second Defendants do not deny that these matters appear in Enclosure 160 and Enclosure 161. Their position is that any objection arising from them may be addressed in submission at the hearing of Enclosures 68 and 69, and that the exchange of affidavits, being closed, ought not to be reopened. C. ISSUES FOR DETERMINATION [14] Three issues arise for determination:

by what principle the Court determines whether to permit a party to file a further affidavit after the conventional exchange of affidavits has been treated as closed;

(ii) whether the matters relied upon by the Plaintiff are genuinely new assertions of fact requiring an affidavit in response, or objections and arguments capable of being dealt with in submission at the hearing of Enclosures 68 and 69; and

(iii) if leave is to be granted, upon what terms, and whether the First Defendant should be afforded a corresponding liberty to respond. D. THE GOVERNING PRINCIPLES [15] The number and sequence of affidavits in an interlocutory application lies within the control of the Court. The conventional sequence an affidavit in support, an affidavit in reply from the party opposing, and an affidavit in answer from the moving party exists to ensure that each party has a fair opportunity to meet the case of the other, while guarding against the indefinite multiplication of affidavits and the delay and expense that attend it. Once that exchange is complete, a further affidavit may be filed only with the leave of the Court, in the exercise of its case-management function and its inherent jurisdiction to regulate its own process the latter being expressly invoked in Enclosures 68 and 69 by reference to Order 92 rule 4 of the Rules of Court 2012. [16] The discretion is not at large. It is directed to the just, expeditious and economical disposal of the application. Leave to file a further affidavit is ordinarily granted where the affidavit sought to be answered raises genuinely new matter which the moving party has had no proper opportunity to address, and where that matter is factual in character, such that it cannot fairly be met otherwise than by evidence. Leave is ordinarily refused where what is described as "new matter" is in substance legal objection or argument; where the further affidavit seeks not to answer something new but to repair or reinforce the moving party's own case; or where the matter can adequately and fairly be dealt with in submission. [17] The distinction which runs through these principles is the distinction between fact and argument. A disputed question of fact must be established by evidence on affidavit; it cannot be supplied from the Bar. That proposition finds direct expression in the authority relied upon by the Plaintiff, Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA), in which the Court of Appeal affirmed the settled principle governing the evaluation of affidavit evidence in these terms: "... where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted." [18] The principle in Ng Hee Thoong is significant for the present request in two respects. It explains why a party faced with a genuinely new and material assertion of fact may be obliged to answer it on affidavit rather than by argument; for a fact left uncontradicted may be taken to be admitted. Equally, it marks the limits of that need, for the principle operates only upon positive assertions of fact on material issues, and not upon every observation, objection or comment that an opposing affidavit may contain. [19] These principles must be applied with the procedural history in mind. A direction closing the exchange of affidavits, and reserving objections to the hearing, regulates the affidavits then upon the record. It cannot be read as foreclosing in advance any response to genuinely new factual matter first introduced by the very affidavit intended to close the exchange. To read it so would permit a party, by the timing of its last affidavit, to place new facts beyond reply. The question therefore remains, in each instance, whether the matter said to be new is in truth a new assertion of fact, and whether it can fairly be met only by evidence. E. ANALYSIS AND DETERMINATION

The threshold objection: the closed exchange and the e-Review of 4 June 2026 [20] The primary position of the First and Second Defendants is that the exchange of affidavits was closed; that this Court had directed on 28 April 2026 that objections might be raised in submission; and that the Plaintiff, having confirmed the position at the e-Review on 4 June 2026 without seeking leave, ought not now to reopen the exchange. [21] That contention cannot be accepted as disposing of the request. Two matters tell against it. First, Enclosure 160 and Enclosure 161 the affidavits said to contain the new matter were filed and served only on the evening of 3 June 2026, at 6.08pm and 7.01pm respectively. The e-Review took place the following morning. The Plaintiff's solicitors cannot fairly be held to have waived a considered objection to the contents of two substantial affidavits received the previous evening. The confirmation given at the e-Review that the exchange was "complete" was a confirmation of the procedural fact that the affidavits had been exchanged, not an election to forgo any response to new matter contained within them. [22] Second, and more fundamentally, the direction of 28 April 2026 cannot bear the weight placed upon it. That direction governed objections to the affidavits already upon the record; it could not, and did not, determine in advance whether a response would be permitted to new factual matter introduced by the closing affidavits themselves. The threshold objection therefore does not conclude the request. It falls to be determined upon its substance: whether the matters relied upon are new assertions of fact that can be met only by evidence.

(ii) The Exhibit MBT-35 matters: non-production and uncertified translations [23] The first and second matters may be taken together. They concern Exhibit MBT-35, which is the Plaintiff's own exhibit, produced by the Plaintiff in Enclosure 150. The observations of the First and Second Defendants are, in substance, two: that MBT-35 contains documents not produced in the Plaintiff's earlier affidavits in reply (Enclosures 110 and 113), and without explanation; and that certain pages of MBT-35 are uncertified English translations of German-language documents, to which objection will be taken. [24] Neither observation is a positive assertion of fact adverse to the Plaintiff of the kind that engages the principle in Ng Hee Thoong. Both are objections directed at the Plaintiff's own evidence. That MBT-35 contains documents not found in those earlier affidavits (Enclosures 110 and 113), and that certain translations are uncertified, are matters apparent on the face of the exhibit itself. They are not facts peculiarly within the Defendants' knowledge which the Plaintiff must controvert; they are, if anything, matters the Plaintiff is in no position to deny. The Plaintiff's silence would admit no more than that which the record already discloses. There is, in short, no contested question of fact here for a further affidavit to answer. [25] What the observations raise is a question of the admissibility and weight of the Plaintiff's evidence whether uncertified translations ought to be received or acted upon, and what, if anything, is to be made of the late production of documents. Those are questions of an evidential and legal character. They fall squarely within the matters which, on the parties' common account, this Court directed on 28 April 2026 might be raised in submission and dealt with at the hearing of Enclosures 68 and 69. They neither require nor are appropriately met by a further round of affidavit evidence. [26] One further observation should be made. If the Plaintiff apprehends that the translations within its own exhibit are vulnerable to objection, the curing of that vulnerability by exhibiting certified translations is a matter going to the regularity of the Plaintiff's own evidence, and is properly to be raised, if at all, at the hearing, where the Court will be in a position to rule upon admissibility and upon any application then made. Refusing leave now to file a further affidavit on this account does not shut the Plaintiff out from meeting the objection; it confines the Plaintiff to meeting it in the proper way and at the proper time. On these two matters, the request fails.

(iii) The application to the Higher Regional Court of Nuremberg [27] The third matter stands upon a different footing. In paragraph 6 of Enclosure 160, the First Defendant asserts that an application has been made to the Higher Regional Court of Nuremberg to review the actions of the German judicial administration. That is an assertion of a positive fact. It is not apparent from any document already upon the record; it is a matter within the First Defendant's own knowledge; and it is material, for the validity of service through the German judicial authorities, and the bearing upon it of any review proceeding in Germany, lies at the heart of Enclosures 68 and 69. [28] This assertion was made for the first time in the First Defendant's closing affidavit, and the Plaintiff has had no opportunity to address it on affidavit. Unlike the Exhibit MBT-35 matters, it is not an objection to the Plaintiff's evidence which the Plaintiff may answer by argument; it is a new fact, the existence, nature and significance of which the Plaintiff may wish to controvert or to place in its proper context. By the very principle on which the Defendants would otherwise rely that a fact asserted and left uncontradicted is treated as admitted (Ng Hee Thoong) the Plaintiff cannot adequately meet this assertion from the Bar. If it is to answer the assertion at all, it must do so by evidence. [29] In these circumstances the considerations of fairness which underlie the discretion point clearly towards permitting a response. A party who introduces a new and material fact in the last affidavit of an exchange cannot complain if its opponent is permitted a confined response directed to that fact. I am satisfied that leave should be granted to the Plaintiff to file a Further Affidavit in Reply, but limited strictly to the matter raised in paragraph 6 of Enclosure 160, and not otherwise.

(iv) Reciprocal liberty and the management of the further exchange [30] Both the First and Second Defendants asked, in the alternative, that if the Plaintiff were permitted to file a further affidavit, they be permitted to respond. Where leave is granted to one party to file a further affidavit upon a defined matter, fairness ordinarily requires that the other party be afforded a corresponding opportunity to answer it. As the matter for which leave is granted arises from the First Defendant's affidavit (Enclosure 160), it is the First Defendant who has the corresponding interest in replying. The First Defendant will accordingly have liberty to file a further affidavit strictly confined to answering the Plaintiff's Further Affidavit in Reply. [31] So that the limited leave granted does not become the occasion for a wider reopening of the exchange, or imperil the hearing of Enclosures 68 and 69 on 23 September 2026, the further affidavits must be confined to the single matter for which leave is given, and filed within short and defined time limits. Any affidavit, or part of an affidavit, that travels beyond the matter raised in paragraph 6 of Enclosure 160 may be disregarded at the hearing. F. CONCLUSION [32] The request is resolved upon the principled distinction between a new assertion of fact and an objection to evidence. The matters concerning Exhibit MBT-35 are objections to the Plaintiff's own evidence, apparent upon the face of the record, which engage no contested question of fact and which this Court has already indicated may be addressed in submission; they do not warrant a further affidavit. The assertion concerning the application to the Higher Regional Court of Nuremberg is, by contrast, a new and material fact introduced in the closing affidavit of the First Defendant, which the Plaintiff can answer only by evidence; a confined response to it is properly to be permitted. The threshold objection founded upon the closed exchange does not stand in the way of that limited response, the new matter having been introduced by the very affidavit intended to close the exchange, and the Plaintiff not having waived its position at an e-Review held the morning after service. The leave granted is deliberately narrow, and is balanced by a corresponding liberty in the First Defendant, so that the substantive applications may proceed to hearing without further delay. G. ORDERS OF THE COURT [33] For the reasons given, I make the following orders:

The Plaintiff is granted leave to file and serve a Further Affidavit in Reply confined to answering the matter raised in paragraph 6 of Enclosure 160 (the asserted application to the Higher Regional Court of Nuremberg), such affidavit to be filed and served within fourteen (14) days of the date of this decision.

Save as provided in order (a), the Plaintiff's request for leave to file Further Affidavits in Reply to Enclosure 160 and Enclosure 161 is refused; and the matters concerning Exhibit MBT-35 (the non-production of documents and the uncertified English translations) are to be dealt with by way of submission at the hearing of Enclosures 68 and 69.

The First Defendant is granted liberty to file and serve a further affidavit strictly confined to answering the Plaintiff's Further Affidavit in Reply referred to in order (a), such affidavit to be filed and served within fourteen (14) days of service of the Plaintiff's Further Affidavit in Reply.

Any affidavit, or part of an affidavit, filed pursuant to orders (a) or (c) which travels beyond the matter raised in paragraph 6 of Enclosure 160 may be disregarded at the hearing of Enclosures 68 and 69.

The hearing date of 23 September 2026 fixed before this Court for the hearing of Enclosures 68 and 69 is to stand, and the parties are to ensure that the further affidavits permitted above are filed in time to preserve that date.

The costs of and occasioned by this request shall be costs in the cause.

Liberty to apply. [34] For the avoidance of doubt, nothing in this decision determines any question arising in Enclosure 68 or Enclosure 69, including the validity of service, the jurisdiction of this Court, or the question of proper forum, all of which remain at large for the hearing of those applications. Dated 19 June 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff Tengku Nazmi bin Tengku Anuar Tetuan Azmi & Associates Peguamcara dan Peguambela Suite 6.03, Tkt. 6, Menara Keck Seng, 203 Jln Bukit Bintang, 55100 Kuala Lumpur. Lawyer For Defendant Encik Aaron Mah Zhee Haang b.p Defendant 1 Tetuan Lim Chee Wee Peguamcara dan Peguambela 12-1, Lorong Dungun, Damansara Heights., 50490 Kuala Lumpur.