Puncak Gali Harmoni Sdn Bhd v Emrail Sdn Bhd (BA-24NCC(ARB)-7-09/2025)

1 IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN ORIGINATING SUMMONS NO. BA-24NCC(ARB)-7-09/2025 BETWEEN PUNCAK GALI HARMONI SDN BHD ... PLAINTIFF AND EMRAIL SDN BHD ... DEFENDANT GROUNDS OF JUDGMENT Introduction

1. These are the Grounds of Judgment in respect of the Plaintiff's Notice of Application dated 21.04.2026 in Enclosure 105 ('Encl. 105'). The application arose in the course of interlocutory proceedings connected to the Plaintiff's application for interim injunctive relief in Enclosure 3 ('Encl. 3'). The issue before this Court is a narrow procedural issue: whether Encl. 105 remains a live application requiring substantive adjudication after the hearing and disposal of Encl. 3 on 22.04.2026. 13/07/2026 09:45:36 BA-24NCC(ARB)-7-09/2025 Kand. 151 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 2. Encl. 105 was filed by the Plaintiff to expunge, disregard and exclude from the record certain materials filed by the Defendant shortly before the rehearing of Encl. 3. The materials complained of were the Defendant's Additional Affidavit in Enclosure 94 ('Encl. 94'), the Defendant's Bundle of Authorities Vol. 2 in Enclosure 96 ('Encl. 96'), and those portions of the Defendant's Further Submissions in Enclosure 95 ('Encl. 95') which referred to and relied upon those materials.

3. The Plaintiff's complaint was, in essence, that the impugned materials were filed late, without leave of Court, and after the Plaintiff had filed its written submissions for the hearing of Encl. 3. The Plaintiff therefore contended that it was deprived of a fair opportunity to answer the materials and that the materials ought not to be used for the purposes of Encl. 3.

4. The Defendant opposed Encl. 105. It contended that Encl. 105 was filed at the eleventh hour, that it was not a proper application to derail or postpone the hearing of Encl. 3, and that it became academic once Encl. 3 was heard and dismissed. The Defendant's position was that no practical purpose would be served by a further determination of Encl. 105. **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 5. Having considered the cause papers, the affidavits filed by both parties, the notes and record of proceedings for the hearing of Encl. 3, and the parties' submissions, I am satisfied that Encl. 105 no longer calls for any substantive determination. It is an ancillary procedural application which has been overtaken by the disposal of Encl. 3. It is therefore disposed of as academic. The Relief Sought in Enclosure 105

6. It is necessary first to identify the true nature of Encl. 105. The application did not seek any substantive relief concerning the underlying dispute between Puncak Gali Harmoni Sdn Bhd ('PGH' or 'the Plaintiff') and Emrail Sdn Bhd ('Emrail' or 'the Defendant'). It did not seek to determine the validity or enforceability of the Letter of Award dated 29.05.2025 or the Letter of Undertaking dated 29.08.2025. It was not directed at the merits of the Originating Summons in Enclosure 1 ('Encl. 1').

7. Rather, Encl. 105 was directed only at the materials which the Defendant sought to rely upon for the hearing of Encl. 3. Its purpose was to regulate the evidential and submission materials before the Court at the inter partes rehearing of the Plaintiff's interim injunction application.

8. This characterisation is important. A procedural application of this nature does not ordinarily have an independent existence once the **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 principal application to which it is attached has been heard and disposed of. If the main hearing has already proceeded, the Court must ask whether any practical relief remains capable of being granted on the procedural objection.

9. In the present case, Encl. 105 was inseparably connected to Encl.

3. It was filed because the Plaintiff objected to the Defendant's reliance on Encls. 94, 95 and 96 for the hearing of Encl. 3. Once Encl. 3 was heard and dismissed, the immediate procedural object of Encl. 105 was spent. Factual Background

10. The background may be stated shortly. The dispute between the parties concerns the project known as 'Package C Restoration of Track and Slope Stabilisation Track Rehabilitation and Associated Works due to Major Flood between Gua Musang and Tumpat Railway Station, Kelantan'. The Plaintiff relies on the Letter of Award and Letter of Undertaking as the basis for its alleged rights in relation to the subcontract works. The Defendant disputes the legal effect of those documents.

11. The Plaintiff commenced Encl. 1 under, among others, section 11 of the Arbitration Act 2005, seeking interim measures pending mediation and arbitration. The Plaintiff also filed Encl. 3 for interim injunctive relief. **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 12. Following appellate directions, Encl. 3 came before this Court for rehearing. Before the rehearing, the Plaintiff filed its written submissions. The Defendant thereafter filed the impugned materials, namely Encl. 94, Encl. 95 and Encl. 96. The Plaintiff objected to those materials and filed Encl. 105 to expunge or exclude them.

13. On 22.04.2026, this Court proceeded to hear Encl. 3. The Court dealt with the issue of the Defendant's additional material in a practical manner for the purposes of the hearing then before it. The Court did not adjourn Encl. 3 pending a separate full hearing of Encl. 105. Instead, the Court proceeded with the hearing of Encl. and thereafter dismissed Encl. 3.

14. The Court also made it clear that the disposal of Encl. 3 did not dispose of Encl. 1. Encl. 1 remained to be dealt with separately. The Plaintiff was not precluded from answering the Defendant's materials for the purposes of Encl. 1.

15. Against that background, the question now is whether there remains any practical utility in determining Encl. 105 on its merits after the disposal of Encl. 3. In my judgment, there is none. **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 The Parties' Contentions The Plaintiff's Position

16. The Plaintiff submits that Encl. 105 was properly filed because the Defendant introduced the impugned materials late and without leave. The Plaintiff says it had already filed its written submissions for Encl. 3 and was therefore deprived of a fair and proper opportunity to respond.

17. The Plaintiff further contends that the Defendant should not be permitted to benefit from its own late filing. According to the Plaintiff, the integrity of the hearing process required the impugned materials to be excluded or disregarded.

18. The Plaintiff also submits that the issue concerning Encl. should not be reopened or ventilated repeatedly. The Plaintiff says the matter has been overtaken by the course of the proceedings and that further debate would merely multiply proceedings and costs.

19. In support of the proposition that academic issues should not be determined, the Plaintiff refers to authorities such as Everest Aisvaram Sdn Bhd v Majlis Bandaraya Shah Alam [2020] 9 MLJ 545, Roslind Kaur a/p Kirpal Singh v Ishvinder Singh a/l Amardeep Singh [2019] MLJU 1686, and United Overseas Bank

20. The Defendant submits that Encl. 105 was a late and unnecessary application which should not have been used to delay or disrupt the hearing of Encl. 3. The Defendant says that the Court was correct to proceed with Encl. 3 notwithstanding the filing of Encl. 105.

21. The Defendant's central argument is that Encl. 105 has become academic. Since Encl. 3 has already been heard and dismissed, the Defendant says there is no longer any practical purpose in deciding whether the impugned materials should or should not have been excluded for the purposes of that hearing.

22. The Defendant also contends that much of the impugned material comprised judicial records from related appellate proceedings. It submits that such records stand on a different footing from wholly new factual evidence and may properly be brought to the Court's attention. **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 23. The Defendant relies on authorities such as Tan Sri Musa bin Hj Aman v Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor [2020] 3 MLJ 46, 3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square and other appeals [2021] 3 MLJ 280, and Wong Koon Seng v Rahman Hydraulic Tin Bhd & Ors [2011] 4 MLJ 337, for the proposition that courts should not determine academic questions. It also relies on Ayer Molek Rubber Company Bhd v Bintang-Bintang Sdn Bhd [2013] 4 CLJ 820 and Deleum Primera Sdn Bhd v Mazrin Ramli & Ors [2021] 1 LNS 488 in relation to judicial records. Issues for Determination

24. In my view, the issues arising for determination are these:

25. It is a basic principle of judicial restraint that courts do not decide abstract, hypothetical or academic questions unless there is some good reason in law to do so. Courts exist to determine live controversies and to grant practical relief. Where no practical relief remains available, a court will ordinarily decline to proceed further.

26. The authorities cited by both parties are consistent on this point. Whether one considers Tan Sri Musa bin Hj Aman, 3 Two Square, Wong Koon Seng, Everest Aisvaram, Roslind Kaur, or United Overseas Bank v Heveaplast, the principle is the same: the Court should not expend judicial time and discretion on a matter which has become spent, defunct or academic.

27. The reason is not merely technical. The rule is grounded in practical justice. A court should avoid making pronouncements where no effective order can follow. It should also avoid creating unnecessary findings on matters which are no longer necessary to resolve the parties' real dispute.

28. This is particularly important in interlocutory litigation. Procedural applications often arise in the course of a hearing. Once the principal hearing has taken place and has been disposed of, many ancillary procedural objections may cease to have independent **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 utility. The Court must then examine whether the ancillary application still has any practical work to do. Analysis The Ancillary Nature of Enclosure 105

29. Encl. 105 was plainly ancillary to Encl. 3. It was not a self-standing substantive claim. It did not ask this Court to determine any contractual right between the parties. It asked the Court to exclude or disregard certain material for the purpose of the injunction application then pending.

30. The practical function of Encl. 105 was therefore limited. It was designed to affect the material before the Court when hearing Encl.

3. Once Encl. 3 was heard and dismissed, the central practical object of Encl. 105 disappeared.

31. The Plaintiff may still feel aggrieved by the circumstances in which the impugned materials were filed. However, the existence of a grievance is not the same as the existence of a live application. The Court must ask whether any meaningful relief remains available on Encl. 105 itself. In my judgment, none does.

32. Encl. 105 cannot now undo the fact that Encl. 3 has been heard. It cannot retrospectively regulate a hearing that has already concluded. It also cannot convert itself into a substantive **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 application concerning the merits of Encl. 1 or the parties' underlying contractual dispute. The Effect of the Hearing and Disposal of Enclosure 3

33. The decisive event is the hearing and disposal of Encl. 3 on 22.04.2026. On that date, the Court proceeded to hear the interim injunction application. The Court dealt with the procedural objection in a practical manner, proceeded with the hearing, and dismissed Encl. 3.

34. The Court did not leave Encl. 3 unheard pending the determination of Encl. 105. Nor did it decide that Encl. 105 should be tried as a separate substantive matter before Encl. 3. The course taken by the Court reflected the urgent and interlocutory nature of the proceedings.

35. Once Encl. 3 was dismissed, the question whether Encls. 94, 95 and 96 ought to have been excluded for the purposes of Encl. 3 no longer had operative effect. A ruling on Encl. 105 at this stage would serve only to answer a spent procedural question.

36. The Court is not required to decide such questions merely because parties seek a formal answer. Judicial resources should be directed to live issues where the Court's order will make a practical difference. **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Whether the Court Should Determine Enclosure 105 on the Merits

37. The Plaintiff's complaint concerns fairness. It says it was deprived of an opportunity to answer the impugned materials before Encl. was heard. That complaint is not frivolous in the abstract. Late filing of affidavit material can, in an appropriate case, raise real issues of procedural fairness.

38. However, the Court does not determine procedural fairness in the abstract. It determines it in the context of the relief sought and the proceeding in which the complaint arises. Here, the relief sought in Encl. 105 was directed to the conduct of the Encl. 3 hearing. That hearing has concluded.

39. Further, the Court preserved the Plaintiff's ability to respond to the Defendant's material for the purposes of Encl. 1. Encl. 1 remained a live application. The Plaintiff was therefore not shut out from responding to the material in relation to the Originating Summons. This is an important practical consideration.

40. In these circumstances, a further merits determination of Encl. would not serve the administration of justice. It would not revive Encl. 3. It would not determine Encl. 1. It would merely produce findings on a procedural complaint whose immediate purpose has passed. **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 41. For that reason, I decline to decide whether the impugned materials should originally have been filed with leave, whether their late service was justified, or whether each part of Encls. 94, 95 and 96 ought to have been excluded. Those issues no longer require determination for the disposal of Encl. 105. Whether Any Prejudice Survives

42. The next question is whether any surviving prejudice requires the Court to make a substantive order on Encl. 105. In my judgment, it does not.

43. First, Encl. 3 has already been disposed of. Any alleged prejudice in the conduct of that hearing cannot now be cured by expunging materials for the purposes of that same hearing. Secondly, Encl. remained alive, and the Plaintiff was afforded the opportunity to respond to the Defendant's materials in relation to Encl. 1.

44. Thirdly, the Plaintiff's underlying rights, if any, remain to be determined in the appropriate forum. Nothing in the disposal of Encl. 105 as academic determines the merits of the Letter of Award, the Letter of Undertaking, the alleged termination, or the arbitral dispute.

45. The Court therefore does not accept that any live prejudice remains which requires Encl. 105 to be adjudicated on its merits. The proper **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 procedural course is to dispose of Encl. 105 as academic, while making it clear that no substantive merits determination is made on the Plaintiff's objections to Encls. 94, 95 and 96. Judicial Records

46. The Defendant submits that the impugned materials consisted substantially of judicial records from appellate proceedings. It argues that judicial records may properly be brought to the Court's attention and are not equivalent to fresh factual evidence introduced by surprise.

47. There is force in the general proposition that judicial records stand on a different footing from ordinary affidavit evidence. However, it is unnecessary for the Court to determine the full extent of that proposition in this application.

48. Even if the Plaintiff had arguable concerns about the timing and manner of filing, Encl. 105 has nonetheless become academic. The application is disposed of on that basis. I therefore make no final determination on the broader question whether every part of Encls. 94, 95 and 96 was properly filed or properly relied upon. **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 No Determination of the Merits of the Underlying Dispute

49. It is also necessary to emphasise what this judgment does not decide. It does not decide the merits of Encl. 1. It does not decide whether the Letter of Award is valid, conditional, unconditional, terminated, or enforceable. It does not decide whether the Letter of Undertaking creates binding rights in favour of the Plaintiff. It does not decide whether the dispute should proceed in arbitration.

50. The present grounds concern only the procedural status of Encl.

105. The Court's conclusion is that Encl. 105 no longer serves any practical purpose because the injunction application to which it was ancillary has already been heard and disposed of. Conclusion

51. For the reasons stated above, I make the following findings:

52. The proper order is therefore to dispose of Encl. 105 as academic. This is not a merits dismissal of the Plaintiff's procedural complaints. It is a recognition that the application has been overtaken by the disposal of the principal interlocutory application to which it was attached. Order

53. Accordingly, the Court orders as follows:

(1) Enclosure 105 is disposed of as academic.

(2) No separate merits determination is made on the substantive complaints advanced in Enclosure 105 concerning Enclosures 94, 95 and 96.

(3) For avoidance of doubt, this order does not determine the merits of Enclosure 1 or the underlying dispute between the parties. **Note : Serial number will be used to verify the originality of this document via eFILING portal 17

(4) Costs of Enclosure 105 shall be costs in the cause. Dated this 13th day of July 2026 -sgd- ........................................ Asmah binti Musa Judicial Commissioner High Court of Malaya Shah Alam Counsel for the Plaintiff: Mr Alvin Oh Sew Chang Peng (Ms Priscilla Faith Lim and Ms Jane Chan Siew Thung with him), Messrs Sia Siew Mun & Co Counsel for the Defendant: Mr Ooi Suan Kim (Mr Boo Honn Chin with him) Messrs O S Kim & Associates **Note : Serial number will be used to verify the originality of this document via eFILING portal