S & D Win Sdn Bhd v 1. ) Suzie Balung (JA-12A-19-10/2023)

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SUZIE BALUNG MUHAMMAD RAJA IMRAN SHAH ...RESPONDEN-RESPONDEN/PEMIUTANG-PEMIUTANG PELAKSANAAN (DALAM MAHKAMAH SESYEN DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM GUAMAN SIVIL NO.: JA-A52-49-11/2017

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SUZIE BALUNG MUHAMMAD RAJA IMRAN SHAH … PLAINTIF-PLAINTIF/ PEMIUTANG-PEMIUTANG PELAKSANAAN

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TAN YEE KHIAM

NG WEN SIN … DEFENDAN-DEFENDAN/ PENGHUTANG-PENGHUTANG PELAKSANAAN) S/N qMrir/BdEEuilOX0Cg8Rmg GROUNDS OF JUDGMENT Introduction [1] For ease of reference of this appeal, parties will be referred to as they were in the proceedings before the Sessions Court. [2] This is an appeal filed by the 2nd Defendant against the decision of the Sessions Court Judge on 21.9.2023 in allowing the Plaintiffs’ application to amend the order of the court dated 9.3.2022. [3] As a brief background, on 19.10.2020 vide Civil Suit No. JA-A52- 49-11/2017 (“SCCS No. 49”), the Plaintiffs obtained a judgment against the Defendants where, inter alia, the 2nd, 3rd and 4th Defendants have to pay the former a sum of RM213,000.00. [4] On 1.11.2021 an individual known as Choo Chee Hwa filed the Winding–Up Petition No: JA–28NCC–126–11/2021 (“WP No. 126”) against the 2nd Defendant. [5] Not long after, on the 8.12.2021, the Plaintiffs filed the Writ of Seizure and Sale No: JA–56WS–22–12/2021 (“WSS No. 22”) pursuant to SCCS No. 49 against the 2nd Defendant. [6] Subsequently, the Defendants filed an application in WSS No. 22 to stay any execution proceeding and all proceedings of WSS No. 22 until the disposal of WP No. 126. [7] On 9.3.2022, the Sessions Court made an Order (“Order dated 9.3.2022”) which consists of the following: S/N qMrir/BdEEuilOX0Cg8Rmg

suatu perintah bahawa sebarang prosiding pelaksanaan tidak boleh diteruskan sehingga pelupusan akhir petisyen penggulungan No. JA- 28NCC-126-11/2021;

bahawa satu perintah penggantungan kesemua prosiding di bawah Writ

bahawa senarai barang yang disenaraikan dalam senarai Inventori dikekalkan sehingga pelupusan tindakan penggulungan syarikat di Mahkamah Tinggi Johor Bahru; dan

tiada perintah untuk kos. [8] On 30.8.2022, notwithstanding all execution proceedings are stayed pursuant to the Order dated 9.3.2022, the Plaintiffs filed another Writ of Seizure and Sale No: JA–56WS–28–08/2022 (“WSS No. 28”) based on the order in SCCS No. 49. This WSS No. 28 is against the 4th Defendant. [9] On November 2022, the 4th Defendant filed an application in WSS No. 28 for an order for committal be issued against the Plaintiffs’ solicitors namely Sritharan a/l K. Govindan (“Sritharan”) and Rajagunaseelan a/l Padmadaban (“Rajagunaseelan”) on the ground that the duo allegedly contempt the court by deliberately disobeying the Order dated 9.3.2022. On 22.12.2022, an ex-parte order was issued by the Sessions Court allowing the 4th Defendant to commence a committal proceeding against Sritharan and Rajagunaseelan. Vide a letter dated 29.12.2022, the Sessions Court fixed 16.1.2023 as the date for hearing of the committal proceeding. However, I was not informed of the outcome of the committal proceeding. S/N qMrir/BdEEuilOX0Cg8Rmg [10] On 21.9.2023, the Plaintiffs filed an application (“Amendment Application”) to amend the Order dated 9.3.2022. The proposed amendments are highlighted as follows:

suatu perintah bahawa sebarang prosiding pelaksanaan terhadap Defendan Kedua tidak boleh diteruskan sehingga pelupusan akhir petisyen penggulungan No. JA-28NCC-126-11/2021;

bahawa satu perintah penggantungan kesemua prosiding terhadap Defendan Kedua di bawah Writ Pelaksanaan No. JA-56WS-22-12/2021;

bahawa senarai barang yang disenaraikan dalam senarai Inventori dikekalkan sehingga pelupusan tindakan penggulungan syarikat di Mahkamah Tinggi Johor Bahru; dan

tiada perintah untuk kos. [11] Sritharan, the Plaintiffs’ solicitor who affirmed the affidavit in support of the Amendment Application stated the following reasons:

the Order dated 9.3.2022 does not reflect the actual state of the Sessions Court order on 9.3.2022; and

the amendment is needed to change the names of the parties namely from the Defendants to the 2nd Defendant. [12] The 2nd Defendant, on the other hand, in refuting the Amendment Application avers that the Court has no jurisdiction to amend the Order dated 9.3.2022 since it does fall within the ambit of “slip rule” pursuant to O. 20, r. 11 of the Rules of Court 2012 (“ROC”). S/N qMrir/BdEEuilOX0Cg8Rmg [13] On 21.9.2023, after hearing submissions from all parties, the Sessions Court Judge allowed the Amendment Application and ordered parties to bear their own costs. Whether the Amendment Application falls within the slip rule [14] It is trite that once an order is perfected, it may not be amended unless in exceptional circumstances where justice is required (see Savena Supramaniam Pillay v. Tan Kah Chiat administrator of Tan Kong Liang deceased [1934] CLJU 72; [1934] 1 LNS 72; [1934] 3 MLJ 133; Chinese Tin Mines Rehabilitation Loans Board v. Chee Hoi Voon [1959] CLJU 97; [1959] 1 LNS 97; [1958] 1 MLJ 269 and Shell Malaysia Trading Sdn Bhd v. Leong Yuet Yeng & Ors [1990] CLJU 166; [1990] 1 LNS 166; [1990] 3 MLJ 254). [15] O. 20, r. 11 of the ROC which is known as the slip rule allows a judgment or order be amended in very limited exceptional circumstances. The Order reads – Amendment of judgment and orders (O. 20, r. 11)

Clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court by a notice of application without an appeal. [16] In the celebrated case of Hock Hua Bank v. Sahari bin Murid [1982] CLJ Rep 744; [1980] 1 MLRA 687, the Federal Court speaking through Chang Min Tat FCJ held as follows: Clearly the Court has no power under any application in the same action to alter vary or set aside a judgment regularly obtained after it has been entered or an order after it is drawn up, except under the slip rule in 0.28 S/N qMrir/BdEEuilOX0Cg8Rmg r.11 Rules of the Supreme Court 1957 (0.20 r.11 Rules of the High Court

so far as is necessary to correct error in expressing the intention of the Court. Re St. Nazaire Co.12 Ch D 99, Kelsey v. Doune [1912] 2 KB 482; Hession v. Jones [1914] 2 KB 421, unless it is a judgment by default or made in the absence of a party at the trial or hearing. But 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: Hip Foong Hong v. Neotia & Co. [1918] AC 888 and Jonesco v. Beard [1930] AC 298. The hearing of the action will in a proper case be expedited: Smith v. Peizer 65 SJ 607.". [17] The Sessions Court Judge in her grounds of judgment (for her full grounds of judgment, see Suzie Balung & Anor lwn. S & D Win Sdn Bhd [2023] SMCU 283; [2023] 5 LNS 283) stated that – [17] Memandangkan Notis Permohonan di Lampiran 9 adalah permohonan Defendan Kedua sahaja, ia menunjukkan hanya Defendan Kedua yang memohon perintah tersebut. Oleh itu, adalah wajar perintah pada 9/3/2022 dipinda dan ditukar menjadi “Atas permohonan Defendan Kedua…” sebagaimana dinyatakan dalam permohonan dan cadangan pindaan oleh pihak Plaintif-Plaintif di Lampiran 26. [18] Pindaan hanya menggambarkan apa yang dipohon dalam permohonan. Ia tidak mengubah karektor permohonan atau perintah yang diberikan. ….. [24] Oleh demikian, Mahkamah berpusahati pindaan ini boleh dibenarkan dibawah slip rule dan ia juga tidak mengandungi sebarang variasi terma atau apa-apa tambahan bagi apa yang telah diperintahkan oleh Mahkamah. [25] Mahkamah juga berpendapat bahawa pindaan tidak sesekali memprejudis Defendan disebabkan ianya adalah perintah yang sama dengan S/N qMrir/BdEEuilOX0Cg8Rmg perintah bermeterai 9/3/2022 dan ia merujuk secara spesifik seperti niat sebenar Mahkamah. [18] At this juncture, it is evidenced from the grounds of judgment that the Sessions Court Judge did not refer the court minutes to verify whether there is any clerical mistake or accidental slip or omission to warrant the Order dated 9.3.2022 be amended. In fact, based on the court minutes in page 19 of Rekod Rayuan, there is nowhere mentioning that the Order dated 9.3.2022 was intended only to affect the 2nd Defendant as claimed by the Plaintiffs. Thus, the Plaintiffs’ averment that the Amendment Application is needed to reflect the actual order of the court, is totally baseless. [19] Additionally, I find that the proposed amendment in the Amendment Application is not a minor correction as held by the Sessions Court Judge. In fact, it actually involves three other Defendants and allows only one the Defendant namely the 2nd Defendant the right of a stay of WSS No. 22. With the amendment, the stay of proceeding applies only to the 2nd Defendant and not to all the Defendants. [20] The Sessions Court Judge also erred when she stated that the Order dated 9.3.2022 should be limited to the 2nd Defendant as the company was only the party applying for the stay. On this issue, the fact that the stay application filed by the 2nd Defendant does not ipso facto indicate that it was meant to affect the 2nd Defendant alone. It is pertinent to note that the 2nd Defendant is a company while the other three Defendants are directors of the 2nd Defendant. The 1st, 3rd and 4th Defendants are part of the 2nd Defendant albeit they are named separately as parties. Hence, despite the stay application was filed by S/N qMrir/BdEEuilOX0Cg8Rmg the 2nd Defendant, the main purpose of the application was to stay any proceeding involving all the Defendants until the disposal of WP No. 126 and not limited to the 2nd Defendant. [21] What is amiss in this present appeal is the Amendment Application was filed by the Plaintiffs 1½ years after the Order dated 9.3.2022. There was no cogent and reasonable explanation offered in the Plaintiffs’ affidavit as to why the Amendment Application was filed late. [22] Nevertheless, the narrative below could shed light why the timing of the filing of the application was made as such. It is pivotal to note that the Amendment Application was filed right after the 4th Defendant made an application for an order for committal proceeding be commenced against the Plaintiffs’ solicitors namely Sritharan and Rajagunaseelan for deliberately violating the Order dated 9.3.2022. Sensing that the duo run the likelihood of being guilty of contempt, the Plaintiffs quickly filed the Amendment Application to mitigate the risk. This is to answer why Sritharan himself affirmed the affidavit in support of the Amendment Application on behalf of the Plaintiffs. [23] It is axiomatic that with the proposed amendment to the Order dated 9.3.2022, the stay of proceeding would only apply to the 2nd Defendant and not the rest (including the 4th Defendant). Thus, the action of the Plaintiffs to file WSS No. 28 against the 4th Defendant would no longer be considered as disobeying the Order dated 9.3.2022. In short, the Amendment Application was conspicuously used as an escape door for the Plaintiffs’ solicitors to circumvent the committal proceedings and nothing else. This is undeniable not bona fide and S/N qMrir/BdEEuilOX0Cg8Rmg purely a tactical manoeuvre. Hence, to allow this tactical manoeuvre would militate against the basic principle of justice. Conclusion [24] It is my considered view that the Plaintiffs could not rely upon the slip rule to add something which was not even highlighted when the order was pronounced. The slip rule applies only in respect of clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission. Accidental slip or omission on the part of the Plaintiffs’ counsel cannot attract the provision of O. 20, r. 11 of the ROC. [25] Based on all the reasons explained, it is my considered view that the Sessions Court Judge should have dismissed the Amendment Application. Hence, I allow the appeal with costs and the Sessions Court Order dated 21.9.2023 is reversed. Dated: 7.4.2025 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, Johor Bahru High Court Counsels: For the Appellant - Aida binti Haji Hassan; Messrs. Aida & G. Ravi. For the Respondents – P. Rajagunaseelan; Messrs. G.K. Sritharan & Co., S/N qMrir/BdEEuilOX0Cg8Rmg