Olam Global Agri Pte Ltd v AAStar Trading Pte Ltd (WA-24NCC(ARB)-34-09/2024)

That Paragraph 8.2(iii) (“Impugned Paragraph”) and Exhibit “MER-1” (“Impugned Exhibit”) contained in the Defendant’s affidavit affirmed by Mannepali Gayatri Ram on 28.3.2025 (Enclosure 153) (“Defendant’s Discovery Affidavit”) be expunged, removed and erased from the Court’s record;

That the Defendant’s Discovery Affidavit be expunged, removed and erased from the Court’s record;

That for the purpose of the hearing of the Defendant’s notice of application dated 12.2.2025 (Enclosure 135) (“Defendant’s Discovery Application”), the Plaintiff re-file the Defendant’s Discovery Affidavit which has been redacted; S/N fjDAo0LceEe/1U/s84xbkw

That, as an alternative, leave be granted to the Plaintiff to file a further affidavit in reply to the Defendant’s Discovery Affidavit. [2] However, I have decided to dismiss Enclosure 161 based on the reasonings which I shall explain hereafter. Background facts [3] The Plaintiff agreed to purchase palm olein from the Defendant (“Contract”). The initial agreement was for the palm olein (“Cargo”) to be loaded on board a nominated vessel (“Ship”). However, complications arose as to the loading of the Cargo. Eventually, the Ship left without the Cargo. The Plaintiff then proceeded to arrest the Ship. [4] Following continuous disputation between the parties, the Plaintiff informed the Defendant that they no longer wish to continue with the Contract. The Defendant, in turn, claimed that the Plaintiff is now in default of the Contract. [5] The Defendant then commenced arbitration proceedings under the auspices of the Palm Oil Refiners Association of Malaysia (“PORAM”) against the Plaintiff and pursuant to the PORAM Rules of Arbitration and Appeal. [6] On 27.9.2023, the First Tier Tribunal of PORAM rendered a first-tier award in favour of the Defendant (“First Tier Award”). Dissatisfied with the First Tier Award, the Plaintiff submitted an appeal to the S/N fjDAo0LceEe/1U/s84xbkw appeal board of PORAM (“Appeal Board”). Upon hearing of the appeal, the Appeal Board handed down the final appeal award in favour of the Defendant (“Final Appeal Award”). [7] Following the Final Appeal Award, the Plaintiff filed the Originating Summons (Enclosure 1) herein to set aside the Final Appeal Award on the ground that the Final Appeal Award is in conflict with the public policy of Malaysia pursuant to the provisions of the Arbitration Act 2005. [8] Thereafter, the Defendant filed the Defendant’s Discovery Application pursuant to Order 24 rules 3, 7 and 10 of the Rules of Court 2012. The documents sought against the Plaintiff are all the pleadings in the arbitration proceedings between the Plaintiff against the owner of the Ship (“Ship Owner”), commenced at the Singapore Chamber of Maritime Arbitration (“SCMA”). [9] On 7.5.2025, the Defendant’s Discovery Application was dismissed. On 13.5.2025, the Defendant filed a notice of appeal (“Appeal”) to appeal against the decision to dismiss the Defendant’s Discovery Application. Summary of the Plaintiff’s case (in supporting Enclosure 161) [10] The Plaintiff explains that the Impugned Exhibit contains an affidavit by Jeroen Wiskerke affirmed on 20.11.2024 (“Jeroen’s Affidavit”). The Plaintiff argues that Jeroen’s Affidavit ought to be expunged as it is irrelevant, scandalous and oppressive. S/N fjDAo0LceEe/1U/s84xbkw [11] The Plaintiff states that the Defendant has exhibited Jeroen’s Affidavit to attempt to show that the Plaintiff is taking the same stance in the SCMA’s arbitration (“SCMA Arbitration”) as it took in the arrest proceedings of the Ship (“Arrest Proceedings”). [12] The Plaintiff argues that the Arrest Proceedings is irrelevant to this current suit. There is also nothing in Jeroen’s Affidavit which can show that the Plaintiff had adopted a certain position or stance in the SCMA Arbitration. In fact, Jeroen’s Affidavit is not related to the SCMA Arbitration or the Arrest Proceedings. It was actually filed in support of the Plaintiff’s application to transfer proceedings from the Singapore High Court to the Singapore International Commercial Court. The Plaintiff also adds that the Defendant is not a party to the SCMA Arbitration. [13] The Plaintiff submits that the Singapore High Court has already made an order for the court’s file to be sealed and that access and/or inspection by non-parties is withheld (“Sealing Order”). This means that the Defendant’s reliance on Jeroen’s Affidavit is scandalous and/or oppressive because the disclosure of Jeroen’s Affidavit is in breach of the Sealing Order and the confidentiality provisions under the SCMA Arbitration Rules. [14] The Plaintiff points out that the Defendant had not made any formal application to the Singapore High Court to be allowed to disclose Jeroen’s Affidavit. This is a deliberate attempt by the Defendant to circumvent the Sealing Order. S/N fjDAo0LceEe/1U/s84xbkw [15] The Plaintiff’s Singaporean legal expert (“Legal Expert”) has also given a legal opinion and confirm the following matters: -

The Defendant’s disclosure of Jeroen’s Affidavit constitutes a breach of the Sealing Order; and

The Defendant is not a party to the Singapore High Court’s proceedings where the Sealing Order was made. [16] Although the Defendant has explained that they have obtained a copy of Jeroen’s Affidavit prior to the Sealing Order being made, the Legal Expert is still of the opinion that the Sealing Order will continue to apply to all non-parties with notice. Just because the Defendant has managed to obtain a limited access (prior to the Sealing Order), it does not mean that Jeroen’s Affidavit has lost any of its confidentiality. If Jeroen’s Affidavit be allowed to remain on records, other third parties may have a chance to use and disclose it. [17] The Plaintiff had actually previously requested for the Defendant to withdraw and re-file the Defendant’s Discovery Affidavit (without the inclusion of Jeroen’s Affidavit) but the Defendant had rejected to the Plaintiff’s request. [18] The Plaintiff also argues that Enclosure 161 is not academic following the dismissal of the Defendant’s Discovery Application. This is because the Defendant’s Discovery Application is currently pending appeal and forms part of the Record of Appeal. S/N fjDAo0LceEe/1U/s84xbkw [19] The Plaintiff submits that Enclosure 161 is not contingent or dependent of the Appeal. If not expunged, Jeroen’s Affidavit may still continue to be used and referred in these proceedings (including that in Enclosure 1). Therefore, the Plaintiff’s position is that Jeroen’s Affidavit ought not to be kept and maintained in the Court’s records due to the prejudice caused by its scandalous and oppressive nature. Summary of the Defendant’s case (in opposing Enclosure 161) [20] The Defendant submits that the Plaintiff’s application is baseless on the following grounds: -

The Sealing Order made by the Singapore High Court does not apply to Malaysian court proceedings;

Jeroen’s Affidavit is not confidential and its disclosure is not prohibited by any court order of competent jurisdiction;

Jeroen’s Affidavit is relevant;

The disclosure does not prejudice the Plaintiff as they had the right to file a further affidavit;

The SCMA Arbitration Rules are inapplicable;

The Defendant did not violate the Sealing Order as the Sealing Order does not specifically prohibits disclosure of documents. S/N fjDAo0LceEe/1U/s84xbkw [21] The Defendant explains that the Defendant had requested to inspect the case files in Singapore on 13.12.2024. The Defendant was then granted limited access on 20.12.2024. The Jeroen’s Affidavit was one of the documents that the Defendant was granted access to. The Singapore High Court subsequently made the Sealing Order only on 16.1.2025. [22] The Defendant had rejected the Plaintiff’s request to withdraw Jeroen’s Affidavit on the following reasons: -

Jeroen’s Affidavit was provided to the Defendant by the Singapore High Court pursuant to a formal inspection request on 13.12.2024;

The Defendant already has possession of Jeroen’s Affidavit prior to the grant of the Sealing Order, which means it is already in the public domain;

The Sealing Order has no retrospective effect;

The Plaintiff only raised objections of Jeroen’s Affidavit after almost one (1) month after going through the Defendant’s written submissions. [23] The Defendant therefore states that the Sealing Order is not automatically recognized and do not have any force in Malaysia. The Sealing Order was also made after the Defendant had legally obtained Jeroen’s Affidavit. S/N fjDAo0LceEe/1U/s84xbkw [24] The Defendant also argues that the dismissal of the Defendant’s Discovery Application has rendered the reliefs sought in Enclosure 161 redundant. The Defendant believe that the main objective of Enclosure 161 was for the Defendant’s Discovery Affidavit to be removed and replaced with an affidavit which has been redacted. In the alternative prayer, the Plaintiff sought leave to reply to the Defendant’s Discovery Affidavit. All these goes to show that the prayers in Enclosure 161 were meant for the hearing of the Defendant’s Discovery Application. [25] As the Defendant’s Discovery Application has been heard and dismissed, the prayers sought under Enclosure 161 would now become redundant and have no real practical effect. [26] The Defendant also states that even if Enclosure 161 is allowed, it would not affect the Record of Appeal. The expungement of Jeroen’s Affidavit would not allow the Plaintiff to remove the said affidavit from the Record of Appeal. If the Plaintiff had intended to remove the document from the Record of Appeal, such an application ought to have been filed before the Court of Appeal. Findings by the Court [27] Order 41 rule 6 of the Rules of Court 2012 states that the Court may order to be struck out any affidavit which is scandalous, irrelevant or otherwise oppressive. S/N fjDAo0LceEe/1U/s84xbkw [28] I have decided to dismiss Enclosure 161 on one ground only, that is Enclosure 161 has been rendered academic following the dismissal of the Defendant’s Discovery Application. On the very onset, I had observed this particular application as odd. Generally, any application to strike out any affidavit pursuant to Order 41 rule 6 would invariably be made prior to the hearing of the particular matter. In this case, Enclosure 161 is before me only after the decision has been delivered and a notice of appeal has been filed against that decision. [29] I would think that an affidavit, once considered and decided by the Court as evidence, ought not generally be expunged or struck out after a decision has been reached. Invariably, the Court’s decision would be based on all the evidence presented during the proceedings, which would have included the affidavit sought to be expunged. In Yeoh Kee Aun v PI Capital Asset Management Sdn Bhd [2000] 4 MLJ 508, it was alluded that the proper time for objecting to the admissibility or portions of an affidavit in support of an application would be when the application comes up for hearing. [30] I also take the view (as rightly pointed out by the Defendant) that the objective of Enclosure 161 appears to be for the Defendant’s Discovery Affidavit to be allowed to be removed and replaced with another affidavit which has been redacted, quite obviously to remove all references to Jeroen’s Affidavit. In another alternative prayer, the Plaintiff sought leave to reply to the Defendant’s Discovery Affidavit. These alternative prayers appear to suggest that Enclosure 161 was meant for, and in anticipation of, the hearing S/N fjDAo0LceEe/1U/s84xbkw of the Defendant’s Discovery Application. Prayers (3) and (4) of Enclosure 161 are reproduced as follows: ”3. Bahawa bagi tujuan pendengaran Notis Permohonan Defendan bertarikh 12.2.2025 (Lampiran 135), Plaintif memfailkan semula AB AAStar (Penzahiran AAStar) yang telah ditutup (redacted), menurut “Lampiran A” kepada Notis Permohonan tersebut, dalam tempoh tujuh (7) hari (atau masa lain yang ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah dibuat di bawah ini;

Secara alternatif kepada permohonan (1), (2) dan (3) di atas, bahawa kebenaran diberikan kepada Plaintif untuk memfailkan afidavit balasan lanjutan kepada AB AAStar (Penzahiran AAStar) dalam tempoh dua-puluh satu (21) hari (atau masa lain ditetapkan oleh Mahkamah Yang Mulia ini) dari tarikh Perintah dibuat di bawah ini;” [31] As such, I take the stand that the reliefs prayed for in Enclosure 161, if granted, would have no real practical impact to the parties, considering that the Defendant’s Discovery Application has already been dismissed. [32] In Bar Council Malaysia v Tun Dato’ Seri Arifin Bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773, the Federal Court in deciding that they would not decide on hypothetical questions which bear no impact on the parties before them, held that: - “[63] We agree with the attorney general chambers that the issues in the motion are academic and that a judgment need not be issued by S/N fjDAo0LceEe/1U/s84xbkw this court. We reiterate the view that it is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. This point was well put by the Lord Justice Clerk (Thomson) in Macnaughton v Macnaughton’s Trustees 1953 SC 387 at p 392: Our courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.” [33] The Plaintiff did argue that the disposal of the Defendant’s Discovery Application would not render Enclosure 161 nugatory or academic, by reason that the Defendant’s Discovery Application is currently pending before the Court of Appeal and that Jeroen’s Affidavit forms part of the Record of Appeal. As authority, the Plaintiff relied on the case of Ng Yee Hong v Malaysian Institute of Accountants [2021] 1 MLJ 584. [34] In Ng Yee Hong v Malaysian Institute of Accountants, a judicial review application was filed. Simultaneously, there was a recusal application being made. The judicial review application was heard and dismissed. The recusal application was also dismissed thereafter. During appeal, the Court of Appeal held that the appeal against the decision in the recusal application was not academic S/N fjDAo0LceEe/1U/s84xbkw because the appeal against the judicial review was still pending. The Court of Appeal decided that a controversy still existed between the parties in respect of the recusal application. [35] I have considered the Plaintiff’s argument. However, I am of the view that the facts and issues in Enclosure 161 differs vastly from that in Ng Yee Hong v Malaysian Institute of Accountants (supra). Enclosure 161 does not extend to any appeal to the Court of Appeal. Enclosure 161 is made before this very same Court (and only after the decision has been delivered). The Plaintiff has also made it clear that the expungement was only in relation to this Court’s records and was for the purpose of the hearing of the Defendant’s Discovery Application. [36] The Plaintiff had also relied on the case of Sangeet Kaur Deo v Chief Justice of The Federal Court of Malaysia [2019] MLJU 1306, where the applicant filed an originating summons seeking certain declarations. The ex-Chief Justice then made an expungement application to expunge certain paragraphs contained in an affidavit. The court then dismissed the originating summons by reason that it had been rendered academic due to certain circumstances and due to the fact that the applicant had intended to withdraw the originating summons. However, notwithstanding the dismissal of the originating summons, the court proceeded to hear the expungement application. [37] With respect to the Plaintiff’s arguments, I take the view that the facts and issues in Sangeet Kaur Deo v Chief Justice of The Federal Court of Malaysia (supra) can be distinguished. The originating S/N fjDAo0LceEe/1U/s84xbkw summons in that particular case had been dismissed without a hearing on its merits. In this case, the Defendant’s Discovery Application has been heard and decided on its merits. The Court’s decision in the Defendant’s Discovery Application was based on all the evidence presented during the proceedings, including Jeroen’s Affidavit. [38] The Plaintiff had also argued that regardless of the outcome of the appeal of the Defendant’s Discovery Application, the Plaintiff will continue to suffer prejudice as long as Jeroen’s Affidavit remains on record and is available for inspection by the public despite it being protected by the Sealing Order. [39] However, I do not see how the expungement of Jeroen’s Affidavit, if it is so allowed by this Court, would alleviate the Plaintiff’s case. The expungement exercise would not affect the Record of Appeal, which is already before the Court of Appeal. Jeroen’s Affidavit would still remain, albeit, now in the form of the Court of Appeal’s records. I do not see how an order issued by this Court would enable the Plaintiff to remove a document from the Record of Appeal, especially if that particular document was already before the High Court during the hearing of the Defendant’s Discovery Application. [40] In the Irish case of Denis O’Brien v The Tribunal of Inquiry into Payments to Messrs. Charles Haughey and Michael Lowry (sole member Mr. Justice Michael Moriarty) (2016) IESC 36, [S.C. No. 39 of 2011]), the Supreme Court, in dismissing the appeal, held that, in general, the court did not decide moot cases. The mootness doctrine was applied by the courts to restrain parties from seeking S/N fjDAo0LceEe/1U/s84xbkw advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable. Such a live controversy had to be present not only when the action or proceeding was commenced but also when the court has called upon to reach a decision. McKechnie J held that: “[94] In Lofinmakin v Minister for Justice [2013] IESC 49, [2013] 4 IR 274, having reviewed most of the significant judgments in this area, I attempted to summarise what the resulting position was, as deducible from such authorities, relative to the rule itself. The following was stated at p 298: “[82] From the relevant authorities thus reviewed and leaving aside the issue of costs which is dealt with separately … the legal position can be summarised as follows:

a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing; S/N fjDAo0LceEe/1U/s84xbkw Conclusion [41] Accordingly, for the reasons above, Enclosure 161 is dismissed with costs fixed at RM 7,000.00. Dated the 31st day of December 2025 …………………………………….. DR. SEOW HOCK PENG Judicial Commissioner High Court (Commercial Division NCC2 & Admiralty) High Court of Kuala Lumpur In the Federal Territory, Malaysia Counsel for Plaintiff: Mr Chong Yee Leong Mr Abd Azim bin Abd Razak Mr Tan Chuan Yi (Messrs. Rahmat Lim & Partners) Counsel for Defendant: Mr Sivakumar Kanagasabai Mr Tatvaruban Subramaniam Miss Erica Wong Jia Chie (Messrs. Skrine) S/N fjDAo0LceEe/1U/s84xbkw

Yeoh Kee Aun v Pi Capital Asset Management Sdn Bhd (Formerly Known as Pi Capital Research Sdn Bhd) [2000] 4 MLJ 508 2. Bar Council Malaysia v Tun Dato’ Seri Arifin Bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, Inter V Ener) And Another Appeal [2020] 4 MLJ 773 3. Ng Yee Hong v Malaysian Institute of Accountants [2021] 1 MLJ 584 4. Sangeet Kaur Deo v Chief Justice of The Federal Court of Malaysia [2019] MLJU 1306 5. Denis O’Brien v Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry (sole member Mr. Justice Michael Moriarty) (2016) IESC 36, [S.C. No. 39 of 2011])

Order 41 rule 6 of the Rules of Court 2012 S/N fjDAo0LceEe/1U/s84xbkw