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

SHEIKH SALLEH BIN SHEIKH ABOD (NRIC No.: 530612-01-5261)

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

This is an application by the Plaintiff for an order inter alia to dispense with personal service of the Interim Injunction Order dated 6.7.2018 granted by the Court (“Interim Injunction Order”) upon the 1st Defendant (“D1”) pursuant to Order 45 rule 7(7) of the Rules of Court 2012 (“ROC”). I have allowed the application. These are the full reasons for my decision. 2

The Plaintiff is a Labuan company which is primarily engaged in the business of leasing/trading and asset management of aviation assets.

D1 was a director of the Plaintiff from 3.9.2015 until 29.1.2018. He held the role of Managing Director of the Plaintiff until on or about 19.6.2017.

D1 has been a director of the 2nd Defendant (“D2”) since 18.9.2015 and is also a majority shareholder in D2. D2 is a Malaysian company which carries on business of an airline carrying passengers and cargo.

At all material times, the Plaintiff is the legal owner of the aircraft known as Boeing 737-400 aircraft bearing manufacturer’s serial number (MSN) 26452, 9M-MMX together with 2 CFMI CFM56-3C1 engines bearing ESN 856691 and 856229 (“Subject Aircraft”). This is not disputed. 3

As the owner of the Subject Aircraft, all 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 (“Aircraft Documentation”) relating to the aircrafts together with any documents to release any encumbrance on the aircrafts belong to and shall be kept by the Plaintiff.

On 24.1.2018, at or about lunch time, D1 together with 9 individuals with apparent designations or roles in D2 gained access and/or entered the Plaintiff’s premises and started removing boxes containing the Plaintiff’s property from the Plaintiffs’ premises. At the material time, D1 was a director of the Plaintiff. The boxes were transported away with the help of D2’s employees and representatives.

The documents removed from the Plaintiff’s premises are said to include Aircraft Documents of the Subject Aircraft and the Plaintiff’s books, records and accounts (“Listed Items”).

The Plaintiff issued a letter of demand dated 2.3.2018 to D1 and D2 for the return of the documents in the Listed Items but the documents were not returned. 4

The Plaintiff then filed a Notice of Application (enclosure 5) which was heard ex parte on 11.4.2018. The Court granted an Anton Piller order on 11.4.2018 but directed that prayers 8, 9 and 10 of Enclosure 5 be heard inter partes at a later date.

On 6.7.2018, this Court granted order in terms of prayers 8. 9 and 10 of Enclosure 5, which is the Interim Injunction Order referred to in this matter. Prayer 2 of the Interim Injunction Order compels D1 to return the Listed Items, which is the Aircraft Documentation and the Plaintiff’s Books, Records and Accounts as set out in Schedule 2 Appendix A and B within 7 days of the date of the Interim Injunction Order.

On 9.7.2018, the Plaintiff’s solicitors sent a copy of the draft Interim Injunction Order to D1’s solicitors for their comments and approval. As D1’s solicitors had not reverted within 2 days, the Plaintiff’s solicitors filed the draft Interim Injunction Order on 11.7.2018 morning. This was met with opposition from D1’s solicitors and accordingly, the Plaintiff’s solicitors requested an appointment before the Registrar on 12.7.2018 for clarification. 5

On 12.7/2018 morning, the Plaintiff’s solicitors and D1’s solicitors clarified the terms of the Interim Injunction Order before the Registrar. The Registrar did not accept the proposed amendments made by D1’s solicitors to the draft Interim Injunction Order and proceeded to seal the draft Interim Injunction Order as filed by the Plaintiff’s solicitors on 11.7/2018. A copy of the sealed Interim Injunction Order was served on D1’s solicitors on 12.7.2018 afternoon. This is not in dispute.

Attempts were made to personally serve a copy of the sealed Interim Injunction Order on D1 on 13.7.2018 and 16.7.2018 but those attempts were unsuccessful. A copy of the sealed Interim Injunction Order was left at D1’s address after the unsuccessful attempts.

On 13.7.2018 morning, the Plaintiff’s solicitors received a letter from D1’s solicitors informing the Plaintiff that in respect of the documents in D1’s possession as taken on 24.1.2018, D1 has now in compliance with the Interim Injunction Order arranged for the documents to be delivered at the Plaintiff’s office between 4 pm to 5 pm on 13.7.2018. 6

At 5.45 pm on 13.7.2018, D1’s personnel arrived at the Plaintiff’s office and delivered 29 boxes containing some of the Plaintiff’s financial documents and certain Aircraft 9M-MMX documents and 1 box which only contained a printer. The Plaintiff contends that besides the cheque book which was returned, other financial documents which were returned on 13.7.2018 were the Plaintiff’s old financial documents that were previously stored in D2’s office and were not the financial documents removed from the Plaintiff’s office by D1 on 24.1.2018.

D1 gave the Plaintiff a cover letter dated 13.7/2018 signed by D1 through his personnel upon the delivery of the 30 boxes. The letter made reference to the Interim Injunction Order and enclosed a Shifting In/Shifting Out Form by DATS Management Sdn Bhd (“Shifting Form”) D1 filled up on 24.1.2018 during the removal of the documents from the Plaintiff’s office which purportedly states that only 30 boxes of documents were removed out of the Plaintiff’s office. The Plaintiff’s representative refused to acknowledge receipt since the contents of the boxes were not verified. The transport representative lodged a police report on this matter.

The Plaintiff contends that D1 has not complied with the Interim Injunction Order. There was an exchange of correspondence between 7 the Plaintiff and D1’s solicitors where the Plaintiff demanded the remainder of the Aircraft Documentation and the Plaintiff’s Books, Records and Accounts according to Schedule 2, Appendix A and B of the Interim Injunction Order. An inspection report prepared by the Plaintiff’s representative which has shows the documents not returned by D1 was also enclosed in the correspondence to D1’s solicitors.

D1 contends that he has fully complied with the Interim Injunction Order and has returned all the documents he took from the Plaintiff’s premises on 24.1.2018.

It is the Plaintiff’s intention to commence committal proceedings against D1 for breach of the Interim Injunction Order. Since the said Order has not been personally served on D1, the present application is made inter alia pursuant to Order 45 rule 7(7) ROC.

Order 45 Rule 5 of the ROC provides for the enforcement of orders to do particular acts including enforcement by way of committal proceedings. Order 45 rule 7(2) ROC states that an order shall not be enforced under Rule 5 unless a copy of the order has been served 8 personally on the person required to do or abstain from doing the act in question; and in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

Order 45 rule 7(7) ROC states that service of a copy of an order under Order 45 can be dispensed with by the Court if the Court thinks it just to do so: “(7) Without prejudice to its power under Order 62 rule 5, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so.”

In Davvy International Ltd and others v Tazzyman and others [1997] 3 All ER 183 (Court of Appeal), when considering Order 45 Rule 7(7) of the Rules of Supreme Court (which is in pari material with Order 45 Rule 7(7) of Rules of Court 2012), the Court held that Order 45 Rule 7(7) can be exercised to dispense with personal service of a mandatory order not only prospectively, but also retrospectively.

Hong Kong Rules of Court Order 45 Rule 7(7) is in pari material with Order 45 Rule 7(7) of the English Rules of Supreme Court and the 9 Hong Kong case of AXA China Region Insurance Co Ltd v Li Yu Ping Ellen [2002] 3 HKC 339 (Court of Appeal) expounds on this principle in Davvy International at paragraph 32: “The determination was that that paragraph of the rule conferred upon the court a power to dispense with service of a copy of a mandatory order, not only prospectively, that is, before the time of compliance with the order had expired, but also retrospectively”.

In AXA China Region Insurance Co Ltd v Li Yu Ping Ellen [2002] 3 HKC 339 (Court of Appeal), the Court of Appeal dispensed with personal service of the order pursuant to Order 45 Rule 7(7) of the Hong Kong Rules of Court because the Court found that the defendant was aware of the terms of the order: a) The plaintiff obtained an ex parte injunction requiring the defendant to deliver up of all such documents in her possession by 16 November 2000 (the first order). The first order was endorsed with a penal notice and served personally upon the defendant on 14 November 2000. The plaintiff contended that the defendant did not deliver up all the requested documents by the deadline on 16 November 10 2000 and a further order was made on 17 November 2000 where, by consent, the first order was varied to require delivery to be no later than 27 November 2000 (the second order). The second order was not served personally on the defendant but upon her solicitors by hand on 22 November 2000. b) No further documents were delivered by the defendant, and the defendant filed an affirmation stating that she had complied with the first order. The plaintiff maintained its stance that the defendant did not deliver up all the documents in her possession and commenced committal proceedings. Leave was granted to commence committal proceedings and the defendant was sentenced to prison for two months at the outcome of the committal proceedings. The defendant appealed and argued that the second order which she was required to comply was not personally served on her and is an irregularity. c) The Hong Kong Court of Appeal applied the principle in Davy International and held that where there has been a failure to serve an order which requires a person to do an 11 act, the court may exercise its power under Order 45 Rule 7(7) to dispense with service, and may do so retrospectively (paragraphs 34 and 35). d) The Court also found that the defendant was aware of the terms of the first order and the variation of the second order, to allow the failure to effect personal service of the second order to render the committal proceedings invalid would not be in the interest of justice (paragraph 45 to 47).

In the Singapore case of OCM Opportunities Fund II, LP and others v Burhan Uray (alias Wong Ming Kiong) and others [2005] SGHC 81 (High Court), the plaintiff’s commenced committal proceedings against the contemnors for failing to comply with their disclosure obligations under the Mareva injunction and the permanent injunction, and failed to attend court for cross-examination pursuant to the order for cross-examination and the peremptory order. The contemnors resisted the proceedings principally on the procedural ground that they were not served personally with the orders.

The Singapore High Court found that Order 45 Rule 7(7) of the Rules of Court (in pari material with Order 45 Rule 7(7) of Malaysia’s 12 Rules of Court 2012) gave the court an unfettered discretion to dispense with personal service and the discretion could be exercised whenever the court thought it just to do so. The Court held that the majority defendants were undoubtedly aware of the terms of the order for cross-examination, peremptory order and permanent injunction and were also alive to the consequences of non-compliance therefore it was just to dispense with personal service retrospectively of those orders (paragraphs 23 and 25).

In Malaysia, in Madliz Azid & Ors v Chua Yung Kim & Ors [2013] 2 CLJ 110 (High Court), the Court followed Davy International and granted dispensation of service of a mandatory order which ordered the first defendant to deliver the title deeds of 98 parcels of lands to the plaintiff’s solicitors within 7 days of the judgment. The Court found that the first defendant knew the terms of the judgment although it was not personally served on him because, inter alia (paragraph 14): a) The plaintiff’s statement of claim had claimed for the specific prayer which required him to deliver the title deeds and the first defendant knew throughout the legal proceedings that was the main order directed against him; 13 b) The first defendant was represented throughout the proceedings; c) The plaintiff’s solicitors sent a draft copy of the judgment to the first defendant’s solicitors and the first defendant’s solicitors duly approved it; d) The first defendant’s solicitors were served with a copy of the sealed and extracted judgment; and e) The first defendant knew that the judgment was obtained against him when he instructed his solicitors to apply to stay execution of the judgment and appeal against the order.

In this case, the Interim Injunction Order is dated 6.7.2018 and ordered D1 to deliver up to the Plaintiff the Listed Items as listed in