Neptune Aviation Ltd v Sheikh Salleh Bin Sheikh Abod & 1 Lg (WA-22NCC-127-04/2018)

SHEIKH SALLEH BIN SHEIKH ABOD (No. K/P: 530612-01-5261)

SUASA AIRLINES SDN BHD (No. Syarikat: 1159383-P) … DEFENDANTS

This is an application by the 2nd Defendant Suasa Airlines Sdn Bhd to set aside or discharge an ex parte order (Anton Piller order) dated 11.4.2018 and an interim injunction order dated 14.5.2018 (“injunction order”). I dismissed the application. These are the full reasons for my decision. 2

The Plaintiff is a company incorporated as a Labuan company and the owner of an aircraft known as Boeing 737-400 aircraft bearing manufacturer’s serial number MSN 26452, 9M-MMX (“9M-MMX”). At all material times, the Plaintiff as the legal owner of Aircraft 9M-MMX owns all of the aircraft’s continuing airworthiness records, log books, weigh schedule, manuals, maintenance reports, technical data and all other documents especially the Manuals and Technical Records (defined as “Aircraft Documentation”) relating to the aircraft together with any documents to release any encumbrance on the aircraft.

9M-MMX was in the process of re-registering in the Plaintiff’s name. However the Aircraft Documentation were removed, redirected and misappropriated by the Defendants from the Plaintiff’s business premises on 24.1.2018. The 1st Defendant was a director of the Plaintiff until 29.1.2018 and a director of the 2nd Defendant.

On 24.1.2018 the 1st Defendant together with 9 representatives and employees of the 2nd Defendant (one ex-employee of the 2nd Defendant) took and removed the Aircraft Documentation and the 3 Plaintiff’s Books, Records and Accounts (“Listed Items”) from the Plaintiff’s premises. The Aircraft Documentation and Listed Items are suspected to be kept at the premises of the 2nd Defendant.

The Plaintiff has sold the Aircraft 9M-MMX to a third party buyer known as Nasim Air (“Buyer”). The Plaintiff is obliged to deliver the aircraft together with the Aircraft Documentation to the Buyer upon receipt of full purchase price. The 1st Defendant had signed the aircraft sale agreement dated 4.4.2017 as a director of the Plaintiff.

The Buyer has required the Plaintiff to deliver the aircraft on or by 2.6.2018 (subject to payment of full purchase price) failing which the Buyer will impose penalty of USD50,000.00 per day. The Plaintiff has since terminated the contract with the Buyer.

It is the contention of the Plaintiff that as a director of the Plaintiff, whilst the 1st Defendant may have the right to inspect the documents of the Plaintiff, he has no right to remove them from the Plaintiff’s premises. Furthermore, the 1st Defendant purported to act on the basis of circular directors’ resolutions which purported to say that the 1st Defendant has been appointed as Chairman of the Plaintiff. However, the company secretary had informed the 1st Defendant that the purported Circular 4 Resolutions require verification. The Circular Resolutions were never registered by the Company Secretary and had been declared ineffective by the Plaintiff on 29.1.2018 on which date the 1st Defendant was removed as a director of the Plaintiff.

As the Defendants clearly have no right to remove and keep the Aircraft Documentation and the Listed Items which belong to the Plaintiff, I granted the Anton Piller Order sought by the Plaintiff on an ex parte basis on 11.4.2018 except for prayers 8, 9 and 10, which I directed to be heard inter partes.

Prayer 8 is an interim mandatory injunction against the Defendants to compel the return to the Plaintiff of the Aircraft Documentation and the Listed Items. Prayer 9 is a restraining order to restrain the Defendants from using, destroying, parting with possession, converting the Aircraft Documentation and Listed Items, unlawfully interfering with the Plaintiff’s trade and business and conspiring and agreeing to commit unlawful acts to interfere with the Plaintiff’s trade and business pending the disposal of the action and prayer 10 is for liberty to the Plaintiff to use the Aircraft Documentation and Listed Items for the purpose of these proceedings and with the leave of the court in any other proceedings against the Defendants. 5

In the case of Arthur Anderson & Co v Interfood Sdn Bhd [2005] 2 CLJ 889, the Court of Appeal set out the rules of procedure and requirements for an Anton Piller order at page 905 as follows: “It is settled that the basic requirements to be satisfied by an applicant for an Anton Piller Order at an ex parte stage are as follows:

To disclose an extremely strong prima facie case;

That a refusal to grant the order will have a very serious effect to the applicant;

That it must be established that the defendant has in its possession the relevant documents and/or materials being sought for and that there is a real possibility that the defendant may destroy such documents and/or materials;

That the applicant is required to make full and frank disclosure, and

That the order should contain the necessary undertakings and safeguards to be complied with upon its execution.”

As things turned out, when the Plaintiff attempted to implement the Anton Piller order, it found that it could not do so as the premises where the Listed Items are suspected to be at were all locked and could not be accessed by the Plaintiff. 6

The main grounds upon which the 2nd Defendant is now relying upon to set aside the Anton Piller order is that the Plaintiff has not made full and frank disclosure and the Plaintiff has not shown that the 2nd Defendant was in possession of the Listed Items. The 2nd Defendant submits that a Mr Choong is a common director of the Plaintiff and the 2nd Defendant before his removal as a director of the Plaintiff and the Plaintiff has failed to disclose that fact. The 2nd Defendant submits that that is relevant because if the court had realised that Mr Choong was a common director, maybe inquiries could have been made from him as to the whereabouts of the Listed Items. The 2nd Defendant also submits that the Plaintiff did not establish that the 2nd Defendant had possession of the Listed Items. The 2nd Defendant denies being in possession of the Listed Items. The 1st Defendant admitted that he had taken away the Listed Items and that he had possession of the Listed Items. The 2nd Defendant says that it cannot be that 2 people are in possession of the same documents.

The Plaintiff submits that the fact that Mr Choong was a common director is immaterial. I agree with the submission of the Plaintiff. Mr Choong only affirmed an affidavit in support of the 2nd Defendant’s application to set aside the Anton Piller order, to say that the 2nd 7 Defendant was not involved in the event of 24.1.2018. However, the undisputed fact is that 9 employees of the 2nd Defendant had, upon instructions of the 1st Defendant as director of the 2nd Defendant removed the Listed Items from the Plaintiff’s premises. The 2nd Defendant surely would be vicariously liable for the acts of its employees. I do not see how the Plaintiff had failed to make full and frank disclosure in not mentioning Mr Choong as a common director of the Plaintiff and the 2nd Defendant.

As for the 2nd Defendant’s connection with the possession of the Listed Items, the Plaintiff has shown that on the day in question when the Listed Items were removed from the Plaintiff’s premises, the 1st Defendant was accompanied by 9 individuals who were employees of the 2nd Defendant (save for one who was an ex-employee of the 2nd Defendant). They took away the Listed Items and the Plaintiff named 3 premises where the 2nd Defendant had its premises and stated on affidavit that the Plaintiff believed that the Listed Items could or might be found at those premises.

I find that the Plaintiff had adduced sufficient evidence that the Listed Items could be found at the 2nd Defendant’s premises and, after the Anton Piller order was granted, 3 ex-employees of the 2nd Defendant 8 had affirmed affidavits to state that on 24.1.2018, they were instructed by the 1st Defendant who was also a director of the 2nd Defendant as well as a director of the Plaintiff then, to go with him to the Plaintiff’s premises to take away all the Listed Items. The said employees said on affidavit that the Listed Items were moved by them to 2 of the 2nd Defendant’s premises. Although the 2nd Defendant denied those allegations and the 1st Defendant had admitted that he took away the Listed Items, it is notable that the 1st Defendant never disclosed where he kept the Listed Items. If they were not kept at the 2nd Defendant’s premises, as stated by the ex-employees who removed them there, either the 1st Defendant or the 2nd Defendant could easily have revealed where the Listed Items were kept. If the 2nd Defendant did not have possession of the Listed Items, it should know where they were kept because the 1st Defendant is a director of the 2nd Defendant. However, both the 1st and 2nd Defendants conveniently neglected to say where the Listed Items were kept. Accordingly, there is no information to suggest that the Listed Items were not kept at the 2nd Defendant’s premises.

If the Listed Items were kept at the premises of the 2nd Defendant, then both the 1st and 2nd Defendants could be said to be in possession of the Listed Items. 9

Also, contrary to what is alleged by the 2nd Defendant, there is no inordinate delay in the Plaintiff moving the court for the Anton Piller order. The Plaintiff has explained in paragraph 63 of its affidavit in support that there was no delay in the filing of the said application as the Plaintiff’s bank account was only unfrozen by the bank on or about 27.2.2018 and the Plaintiff needed to ascertain the extent of the documents that were removed by the Defendants and has to make all attempts possible to recall the inventory lists of the Aircraft Documentation and to check the Plaintiff’s records for all material facts in order to ascertain the extent and the lists of the documents removed. The application was filed on or about 6.4.2018. There is no delay of 4 months as alleged by the 2nd Defendant.

Accordingly, I am of the view that the 2nd Defendant has not succeeded in showing that the Anton Piller order ought not to have been granted. In any event, as I have already stated, the Plaintiff was unable to implement the Anton Piller order as the 2nd Defendant’s premises were locked at the material time and the Plaintiff could not gain access.

As for the interim injunction order dated 14.5.2018, it is relevant to ascertain the circumstances under which it was granted. The court has refused to grant the interim injunction order during the ex parte hearing 10 and had directed the remaining prayers (8, 9 and 10) to be heard inter partes.

When the application in Enclosure 5 was served on the 2nd Defendant on 26.4.2018, it was specifically stated in the cover letter from the Plaintiff’s previous solicitors that prayers 8, 9 and 10 only were fixed for hearing on 14.5.2018 and the 2nd Defendant was well aware of the same. However, the 2nd Defendant failed to file any affidavit in reply before the date of the hearing.

On 14.5.2018, Learned Counsel for the 2nd Defendant was present at the hearing and took the position that the 1st Defendant should be served first and that the 1st Defendant should be permitted to file an affidavit to explain the situation. Learned Counsel for the 2nd Defendant did not ask for more time to file any affidavit in reply or indicate that an affidavit would be filed shortly. Since it has been more than 14 days since the 2nd Defendant was duly served, the court decided to proceed with the hearing against the 2nd Defendant despite the 1st Defendant not being served yet.

Learned Counsel for the 2nd Defendant then urged the court to proceed with the hearing ex parte and sought to leave the chambers. 11 Learned Counsel for the Plaintiff argued that the hearing was on an inter partes basis since the 2nd Defendant had been properly served and was represented in court. The court ruled that the hearing was an inter partes hearing and Learned Counsel therefore remained throughout the hearing although he did not submit when he was invited to because the 2nd Defendant had not filed an affidavit in reply. It was in those circumstances that the interim injunction order was made.

I am of the view, as submitted by Learned Counsel for the Plaintiff, that since the order was made in an inter partes hearing, the proper course of action was for the 2nd Defendant to appeal, which the 2nd Defendant has done. Having appealed against the decision, the 2nd Defendant should not have filed to set aside the interim injunction order.

This application is premised upon Order 2 rule 2, Order 32 rule 6, Order 42 rule 13 and Order 92 rule 4 of the Rules of Court 2012: “Application to set aside for irregularity (O. 2, r. 2)

An application to set aside any proceedings, any step taken in any proceedings or any document, judgment or order therein for non-compliance with these Rules shall not be allowed unless the application is made within a 12 reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity and the non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or a appropriate order for costs.

An application under this rule may, after notice of the irregularity has been given to the other party, be made by notice of application and the grounds of objection shall be stated therein. ... Order made ex parte may be set aside (O. 32, r. 6) The Court may be set aside an order made ex parte. ... Setting aside or varying judgment and orders (O. 42, r. 13) Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him. ... 13 Inherent powers of the Court (O. 92, r. 4) For the removal of doubt it is herby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”

The starting point of any application to set aside an order is simply that upon making an order and the order having been drawn up and perfected, the Court is functus officio. The remedy of a party dissatisfied with the decision of the Court is to appeal. There are limited circumstances in which the Court has jurisdiction to entertain an application to set aside an order. One of those circumstances is where the Order was granted ex parte; this basis for setting aside is explicitly recognized in Order 32 Rule 6. It would be noted that the Rules of Court 2012 does not provide for the setting aside of an inter partes order.

In the Court of Appeal case of Lee Gee Pheng v RHB Bank Bhd [2004] 1 MLJ 618 (Court of Appeal), the Appellant applied to set aside an Order for Sale which was heard on an inter partes basis. The Court set out the law on setting aside perfected orders as follows: 14 “[14] It is worthy of note that once an order of court has been drawn up and perfected, as in this case, it cannot be altered, varied or set aside as the court is functus officio. The proper recourse for a party dissatisfied with the order is to appeal against it. However, this general principle is subject to certain established exceptions which allow the court to set aside or amend a final order. A final order may be set aside or amended without the need to appeal in the following cases:

to correct errors in expressions of the intention of the court (the slip rule)

(ii) where the order is made in the absence of a party at the hearing: O 28 r 4(1); O 32 r 6; O 35 r 2 of the RHC;

(iii) where the order has been obtained in breach of natural justice: Muniandy a/l Thamba Kaundan & Anor v D & C Bank Bhd & Anor [1996] 1 MLJ 374 (refd);

(iv) where the order contravenes a substantive statutory provision rendering it defective on grounds of illegality or lack of jurisdiction; and

where the justice of the case requires the court to correct a serious defect in the order: Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (refd); Selvam Holdings (M) Sdn Bhd v Grand Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, interveners) [2000] 3 MLJ 201 (refd). 15 [15] The present case does not fall within any of the abovementioned established exceptions. Both the appellant and her counsel knew of the hearing date and the appellant was present in court but chose not to say anything against the respondent’s application for the second order for sale. The learned judge was therefore correct in dismissing the appellant’s application”.

In L. Aruul a/l Lurthusamy v Ringganazall a/l Ponnigilee & Anor [2017] 2 MLJ 51 a case in which the Court of Appeal reversed the decision of the High Court which had set aside an order of another High Court, it was held as follows: “[24] There was in this instant case no breach of any written law or statute occasioned by the orders made by the High Court in the 2013-Saman Pemula. It was regularly obtained from a court who had jurisdiction and was competent to deal with such an application and issue those orders. The learned judge who gave those orders might perhaps have misdirected himself in law or on the facts surrounding the grievance or issue. That was however a matter to be taken up in a proper appeal to be brought against that decision by an aggrieved party. [25] We have also now the benefit of further observations of the Federal Court on this issue. In the judgment in Serac Asia Sdn Bhd v Sepakat Insurance 16 Brokers Sdn Bhd [2013] 5 MLJ 1. Abdull Hamid Embong FCJ shed further light on this subject in the following passages: [35] We are thus in agreement with the appellant’s stand that an earlier judgment can only be impeached when it is prohibited by statute; and that Badiaddin to us merely reaffirmed that rule and does not extend the inherent jurisdiction of the court to correct a perfected order or judgment beyond any statutory prohibition. … We think that the Badiaddin’s phrase ‘to intervene and correct a serious defect in the order’ should be read in the context of where an order was obtained in a manner which contravened a statute, resulting in that order being illegal or made outside the jurisdiction of the court. It is in this respect that the court’s inherent jurisdiction may be exercised, to strike out an earlier order, ex debito justitiae and without the need for file a fresh unit. [36] As regards the appellant’s submission on the court being functus officio and that a fresh suit needs to be filed to strike out a previous regularly obtained order on the ground of fraud, we adopt the finding of this court in Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which we think has settled these issues. The headnotes from the report in that case, which need no further explanation, or expansion, is now 2017 2 MLJ 51 at 61 reproduced as our answer to those related questions: 17 In this case the learned judge had made an order for sale in a foreclosure proceeding. The order was made after hearing all the parties and was made despite a claim of non est factum and allegations of fraud and forgery by the respondent. The order was drawn up and perfected. There was no appeal against it. The respondent applied to set aside the judgment and this application was refused. Subsequently the respondent applied again to set aside the previous orders. The learned judge thereupon set aside his order. The appellant appealed. Held:

the learned judge was functus officio;

the court had no power under any application in the same action to alter, vary or set aside a judgment regularly obtained after it had been entered or an order after it has been drawn up, except under the slip rule, so far as is necessary to correct errors in expressing the intention of the court, unless it is a judgment by default or made in the absence of a party at a trial or hearing;

if a judgment or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgment;

in this case the learned judge had no jurisdiction to set aside his own order and the original order must be 18 restored, leaving it to the respondent to take out a fresh action to set aside the order on the ground fraud. [26] Having given the matter our utmost consideration, we were of the view that the recourses validly open to the respondents in the circumstances was, either:

to appeal against the order of court of 27 March 2014 in the 2013- Saman Pemula, and therein possibly apply for material further or fresh evidence to be adduced, to have any order made therein reversed; or

to institute separate proceedings by way of a writ action to impeach any of the orders issued in the 2013-Saman Pemula on the grounds that those orders had been obtained by the appellant upon a fraud or deception being perpetrated on the court to secure those orders.

I had already made a ruling that the hearing on 14.5.2018 was an inter partes hearing. The 2nd Defendant had been served and had more than 14 days to file its affidavit in reply. I do not agree that the 14 days only start to run after appearance has been entered by the 2nd Defendant. It starts to run after enclosure 5 was served on the 2nd Defendant on 26.4.2018.

D2 appears to have confused the time limit to file a defence with the time limit to file an affidavit in reply to an interlocutory application. In this respect: 19 i) Order 18 Rule 2(1) of the Rules of Court 2012 states that a Defendant has 14 days after the time limited for entering an appearance to file a defence; ii) It is Order 32 Rule 13(2) of the Rules of Court 2012 which clearly sets out the time limit to file an affidavit in reply as follows: “(2) Save as otherwise provided in these Rules, or unless otherwise directed by the Court-

an affidavit intended to be used in support of an application shall be filed and served on the other party within fourteen days from the date of filing of the application;

a party intending to reply to an affidavit intended to be used in support of an application shall file his affidavit and serve it on the other party within fourteen days from the date the sealed application and the affidavit in support of that application were served on him whichever is later”.

It is an undisputed fact that the sealed Enclosure 5, being the notice of application, was served upon the 2nd Defendant on 26.4.2018 20 and clearly indicated that prayers 8, 9 and 10 were fixed for hearing on 14.5.2018. The 14 day time limit therefore lapsed on 10.5.2018, without any affidavit being filed.

In any event, Learned Counsel for the 2nd Defendant did not ask for an adjournment of the hearing on 14.5.2018 to file an affidavit. He also did not ask for an extension of time to file an affidavit. He merely asked that the matter be adjourned so that the 1st Defendant can be served also and the 1st Defendant can explain the situation.

In the case of Sagujuta (Sabah) Sdn Bhd v Trane Malaysia Sales & Services Sdn Bhd [2014] 5 MLJ 535, the Court of Appeal held that unless a party has applied for an extension of time, the court has no discretion to allow an affidavit to be filed outside the 14 day time limit. The Court stated as follows: “…The said affidavit was filed more than 21 days had lapsed. This is contrary to O 32 r 13(2)(b) of the Rules of the High Court 1980 (the applicable rules then) which provides that 'a party wishing to reply an affidavit served on him must file his affidavit and serve it on the other party within 14 days from the date on which the affidavit he intends to reply was served on him.' 21 [32] In Perbadaran Nasional Insurans Sdn Bhd v Pua Lai Ong [1996] 3 MLJ 85, the Court of Appeal held that O 32 r 13(2) makes it mandatory for such an affidavit in reply to be filed and served within 14 days from the time the affidavit it seeks to reply is received. It was also held in that case that the court has no discretion to allow such an affidavit in reply if it is filed outside the 14 days period, unless the party in question apply for an abridgement of time required to file the affidavit in reply pursuant to O 3 r 5(1) of the RHC 1980. [33] In the present case, the appellant had not applied for leave or abridgment of time to file the said affidavit in reply. Furthermore the said further affidavit in reply in question was served after the respondent had served on the appellant's solicitors their submissions and bundle of authorities in respect of the summary judgment application. The Court of Appeal, in Lum Choon Realty Sdn Bhd v Perwira Habib Bank Malaysia Bhd [2003] 4 MLJ 409; [2003] 3 CLJ 791 had stressed the following point: We were wondering how the respondent was allowed to file and use that affidavit. It is to be noted that the proceedings of this application are by way of affidavit evidence. As such in our view when the parties begin their submission the evidence by way of affidavits is deemed to be closed and the parties are only allowed to submit on the evidence was found in the various affidavits. [34] The learned High Court judge in the present case had correctly exercised his discretion in allowing the preliminary objection raised by the respondent 22 and consequently rejecting the said further affidavit filed by the appellant. There is no justification for us to interfere.

In Lee Gee Pheng v RHB Bank Bhd [2004] 1 MLJ 618, one of the grounds raised by the Appellant for setting aside the Order for Sale was that it was made without the presence of the other party. However, the Court held that as both the Appellant and her counsel knew of the hearing date and were present in Court but chose not to say anything to oppose the Respondent’s application for the Order for Sale, this does not amount to an absence of the party at the hearing. The Court of Appeal found that the High Court Judge was correct in dismissing the Appellant’s application to dismiss the Order for Sale.

The proper remedy available to the 2nd Defendant is to file an appeal against the decision made on 14.5.2018 and that is something which the 2nd Defendant has already done. This application is therefore an abuse of process in the circumstances of the case.

After the hearing and before decision was given in the case, Learned Counsel for the 2nd Defendant filed a further submission wherein he referred to a number of cases which are either in relation to ex parte order which are irrelevant to the present case or are simply not 23 on point. Nevertheless I will deal briefly with those cases relied upon by the 2nd Defendant. Ex parte: Guan Teik Sdn Bhd (substituting Lim Oo Guan, deceased) [2010] 1 MLJ 1 (FC)

The 2nd Defendant’s reference to this case for the definition of “ex parte” is irrelevant as the hearing in the present case was on an inter partes basis. The application was duly served on the 2nd Defendant and more than 14 days had elapsed since then before the application was heard. Counsel for the 2nd Defendant was present but chose not to submit because he had not filed an affidavit in reply. He did not apply for an adjournment in order to file an affidavit in reply. Chip Chong Sawmill Co Sdn Bhd & Ors v Chai Khiun Fui [1978] 2

The 2nd Defendant cited this case for the proposition that the court has inherent jurisdiction to dismiss or stay or otherwise nullify proceedings which are shown to be vexatious or oppressive. This is not applicable in our case as the 2nd Defendant has not shown any evidence of the interim injunction order being vexatious or oppressive. The 2nd 24 Defendant had submitted that the order in terms of prayer 8 is oppressive because it is premised by the words “ Since the Listed Items cannot be located on the premises”. Learned Counsel submitted that since the Listed Items cannot be located on the 2nd Defendant’s premises, it is oppressive to compel the 2nd Defendant to deliver them to the Plaintiff. However, the reason the Listed Items could not be located at the 2nd Defendant’s premises is not because it was ascertained that they were not at the said premises. What happened was that the Anton Piller order could not be executed or implemented because the 2nd Defendant’s premises were locked and could not be accessed by the Plaintiff. In the circumstances, it does not preclude the inference that the Listed Items were in the possession of the 2nd Defendant. Hence the order granted was not oppressive. Eu Finance Berhad v Lim Yok Foo [1982] 2 MLJ 37 (FC)

This case is in relation to an order for sale of a land made by the Collector of Land Revenue which was found to be a nullity because the Collector had no power to make the order under the National Land Code. This is inapplicable to our case because there is no question of the Court not having the jurisdiction to grant the interim injunction order. 25 Muniandy a/l Thamba Kaundan & Anor v D&C Bank Bhd & Anor [1996]1 MLJ 374 (FC)

This case shows that an order which is a nullity can be set aside but the 2nd Defendant has not shown that the interim injunction order is a nullity. In that case, the first respondent had not notified the appellants of the date of the adjourned hearing which rendered the ex parte order a nullity. In our case, the 2nd Defendant had been served and notified of the 14.5.2018 inter partes hearing on 26.4.2018. Harcharan Singh a/l Piara Singh v Public Prosecutor [2011] 6 MLJ

This case is on the inherent powers of the court under Rule 137 of the Rules of the Federal Court 1990 to rehear and reopen its own earlier decision to prevent injustice or an abuse of the process of the Court. This is distinguishable because the 2nd Defendant did not make an application under Rule 137 of the Rules of the Federal Court 1990. The 2nd Defendant did not seek a review of the interim injunction order. 26

Since I have held that it is not open to the 2nd Defendant to apply to set aside the interim injunction order, there is no need for me to deal with the merits of its grounds for the setting aside of the said order.

In the premises, I would dismiss the application of the 2nd Defendant with costs of RM5,000.00 subject to allocator. Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Dated: 7th August, 2018 27 Solicitors for the Plaintiff Shamala Devi A/P Balasundaram & Michelle Khor Chiew Hong Messrs Chooi & Company Advocates & Solicitors Level 5, Menara BRDB 285 Jalan Maarof, Bukit Bandaraya 59000 Kuala Lumpur Tel : 03-2055 3888 Fax: 03-2055 3880 Solicitors for the 2ndDefendant Amarjeet Singh S/O Mehar Singh Messrs Zubeda & Amarjeet Advocates & Solicitors B5-7-6, Block 5, 7th Floor Unit 6, VSQ @ PJCC Jalan Utara, 46200 Petaling Jaya, Selangor