Ren Biomed Sdn Bhd v Eumaxco Holding Sdn Bhd (WA-12ANCvC-193-11/2024)

This Grounds of Judgment is prepared in respect of an appeal by the Appellant against the decision of the learned Sessions Court Judge delivered on 18 October 2024, which dismissed the Appellant’s application to set aside a writ of distress issued ex parte on 27 June 2024.

Upon perusal of the Appeal Record, this Court finds that the Appellant had raised credible evidence by affidavit that the Tenancy Agreement was not intended to be legally binding and was only executed to support a business licence application.

The Court is of the opinion that these matters raise triable issues that go to the very foundation of the landlord-tenant relationship. The learned Judge, however, failed to properly consider or address this evidence in her grounds of decision.

This amounts to a material misdirection warranting appellate intervention. Accordingly, the appeal is allowed. The order of the Sessions Court dated 18 October 2024 is set aside, and the writ of distress issued on 27 June 2024 is hereby set aside.

Dissatisfied with the Court’s decision, the Defendants have filed an appeal to the Court of Appeal. Accordingly, this Grounds of Judgment is prepared pursuant thereto.

The Respondent had applied for the writ through an Originating Summons, relying on a Tenancy Agreement dated 15 January

It was alleged that the Appellant had defaulted on monthly rental payments for the premises in question. The Sessions Court granted the ex parte application, and the writ was executed shortly thereafter.

The Appellant then applied to set aside the writ on several grounds, including:

That the Tenancy Agreement was never intended to create legal obligations and was executed solely to support an application for a business licence to operate a clinic;

That the use of the Originating Summons procedure was improper given the existence of factual disputes requiring oral evidence;

That there was material non-disclosure during the ex parte application.

The Sessions Court dismissed the setting-aside application, prompting this appeal.

The issue before this Court is not to reassess the merits of the original ex parte distress application. Rather, it is to determine whether the learned Sessions Court Judge erred in law or fact in refusing to set aside the writ upon application by the Appellant, particularly whether there was procedural impropriety, material non-disclosure, or failure to consider relevant evidence.

It is settled law that a party seeking ex parte relief, particularly one with immediate coercive effect like a writ of distress, must make full and frank disclosure of all material facts, including any facts adverse to their case.

Where an aggrieved party applies to set aside such a writ, the court must give full consideration to all evidence placed before it, including any affidavit evidence that raises genuine disputes of material fact. If such disputes exist, particularly where they go to the foundation of the claim ( whether a tenancy relationship even exists), the matter ought not to remain on the ex parte footing.

The appellate function of this Court is to review whether the dismissal of the setting-aside application was legally and procedurally sound, not to re-open the distress application itself.

This Court is mindful that its appellate function is not to rehear the ex parte distress application or re-determine whether the writ should have been granted.

The question is whether the learned Sessions Court Judge erred in refusing to set aside the writ upon application by the Appellant. In this respect, it is the duty of the court below to consider all material evidence placed before it at the setting aside stage.

The Appellant supported this claim with relevant documentation, including the clinic licence application and correspondence which arguably suggested that there was no genuine intention to create a landlord-tenant relationship.

Furthermore, there was evidence that no consistent rental payments were made, and that the premises were not occupied as a rental unit in the ordinary course.

In her judgment, I find that the learned Sessions Court Judge did not engage with these matters substantively. There was no real evaluation of the Appellant’s evidence, nor any finding as to whether the dispute warranted trial. The decision appeared to rest entirely on the presence of a signed tenancy agreement, without inquiry into whether its legal effect was genuinely in dispute.

In my respectful view, this constituted a material misdirection. It is not sufficient to rely on the existence of a signed document where its legal effect is being seriously challenged.

The failure to evaluate the Appellant’s evidence undermines the integrity of the ex parte process and amounts to a failure to exercise judicial discretion properly at the setting-aside stage.

Upon review of the Appeal Record, I find that the Appellant had placed before the Sessions Court credible and substantive affidavit evidence stating that the Tenancy Agreement was never intended to be legally binding. It was allegedly executed for the sole purpose of facilitating a business licence application.

Therefore, the Court believes that when a setting-aside application raises triable issues that go to the root of the claim, such as the very existence of a tenancy, the appropriate course is to set aside the writ and leave the parties to pursue their respective rights through proper proceedings. F.

Therefore, this Court finds that the Sessions Court erred in law and in failing to properly consider material evidence in dismissing the Appellant’s setting-aside application.

Accordingly, the appeal is allowed. The order of the Sessions Court dated 18 October 2024 is set aside. The writ of distress issued on 27 June 2024 is also set aside. Costs of the appeal are awarded to the Appellant with an amount of RM2,000. Dated : 23rd October 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Appellant : Lau Yi Leong, Toh Chia Hua & Wee Chiat Khee Messrs. David Chau & Artika Advocates & Solicitors Counsel for The Respondent : Tan Shao Jia & Chris Wong Jun Wei Messrs. Manjit Singh Sachdev,