Shanghai Yuanyi Technology Pty Ltd v Syahazlin Herrytha Binti Zulkepli (BA-22NCvC-467-11/2024)

SYAHAZLIN HERRYTHA BINTI ZULKEPLI [I/C NO.: 830908-11-5186] [TRADING UNDER THE NAME AND STYLE OF EAGLE NORTHERN SEVICES, A SOLE PROPRIETOR BUSINESS] [COMPANY NO.: 201603104052 (002528761-D)]

VINOD SHARMA A/L BALBIR SINGH [I/C NO: 790621-14-5819]

VINOD SHARMA LAW FIRM [SUMMONSED AS A FIRM]

MOHD KHAIRIL NIZAM BIN MOHD K JABAYEE [I/C NO: 840216-10-5197] … DEFENDANTS 15/12/2025 15:04:51 BA-22NCvC-467-11/2024 Kand. 93

Enclosure 32 is the 2nd and 3rd Defendant’s (D2 and D3) application to expunge/strike out Plaintiff’s affidavits in reply (enclosures 26 and 30) to D2 and D3’s Notice of Applications for security for cost (enclosure 7) and application under O14A (enclosure 20).

This application is made pursuant to Order 41 Rule 5 or 6 and under the inherent jurisdiction of this Court under Order 92 of the Rules of Court 2012 (ROC).

Having heard both parties and read all submissions, I find no merit in D2 and D3’s application and agree with Plaintiff’s submission. I have ordered that both affidavits (enclosures 26 and 30) will be accepted and considered in the application in enclosures 7 and 20. I also agree with the Plaintiff’s preliminary objection concerning D2 and D3’s affidavit in enclosure 45 being a submission and not an assertion of facts. Therefore, Plaintiff’s objection is allowed, and D2 and D3’s affidavit in enclosure 45 will be disregarded.

D2 and D3 are now appealing to the Court of Appeal, and below are my reasons.

Plaintiff is a company incorporated in the Republic of China, based in Shanghai, China.

The 1st Defendant (D1) is the owner of Eagle Northern Services, which carries out the business of wholesaling personal protective equipment (PPE) and products related to pharmaceuticals and medical supplies.

D2 is a practising lawyer at Messrs Vinod Sharma Law Firm

The 4th Defendant (D4) is an individual who introduced D2 to the Plaintiff.

Based on the Statement of Claim, the brief facts are as follows:

Around January 2020, the Plaintiff reached an understanding with Ji Lin Sheng Zhong Xiong Yao Ye Pty Ltd (Ji Lin), a company based in the People’s Republic of China, to make arrangements under which the Plaintiff would sell and supply face masks to Ji Lin.

D4 contacted the Plaintiff and recommended D1, representing that D1 could supply and deliver face masks from Malaysia to the Plaintiff’s location in China.

On 30 January 2020, relying on D4’s representations, the Plaintiff entered into a purchase agreement with D1 for a contract price of USD 177,800.00, with delivery of face masks by 6.2.2020. The Plaintiff then entered into a supply agreement with Ji Lin, under which the Plaintiff agreed to supply face masks at a price of RMB 4,250,000.00.

The Plaintiff subsequently appointed Shenyang Huayue Foreign Economic and Trade Company (SYHY) as a commercial financier to make payment to D1.

Payment was made, but D1 failed to deliver the face masks.

The Plaintiff informed D4 of D1’s failure, and D4 recommended that the Plaintiff appoint D3 as a law firm to claim against D1.

Following D4’s recommendation, on 2.3.2020, the Plaintiff appointed D3 and D2 as lawyers and as the law firm to pursue action against D1.

D2 informed the Plaintiff that legal action had been initiated against D1, that a default judgment had been successfully obtained, and that enforcement proceedings were now being arranged.

On 3.11.2021, D2 emailed the Plaintiff, stating that CIMB Bank Berhad would release RM124,000.00 to the Plaintiff and that D3 had taken steps to register a caveat over D1’s assets.

However, in September 2023, the Plaintiff discovered that the court documents sent by D2 and D3 were fake and/or forged, and that in reality, D2 and D3 had never initiated any legal action against D1.

Plaintiff, through their solicitor, has now filed this action against all Defendants, alleging fraud and, as against D2 and D3, professional negligence.

After the filing of this action, D1 had not entered an appearance, but Plaintiff had not taken any action to record judgment in default of appearance as yet.

D2 and D3 strongly objected to this action and filed several interlocutories before this application in enclosure 32. Nevertheless, I will limit my discussion to the relevant cause papers to focus on the issue at hand.

D2 and D3 filed an application for security for costs pursuant to Order 23 of the ROC to secure payment of costs if D2 and D3 were to succeed in defending this claim. In addition, D2 and D3 also filed an application under O14A for this Court to determine a question of law in relation to the Plaintiff’s locus to pursue this action against them (enclosure 20).

Consequently, Plaintiff filed two affidavits to reply to both the D2 and D3 affidavits in support via enclosures 26 and 30.

Plaintiff’s affidavit was affirmed by its business representative, Gao Zhenyu (Gao’s affidavits), an Australian resident, who is authorized to affirm the affidavits pursuant to a letter of authorization issued by the Plaintiff.

D2 and D3’s reason for the application to strike out Gao’s affidavit was on the basis:

The filing of Gao’s affidavit was an abuse of court process, as it was contrary to this Court’s order allowing a stay on the filing of the reply to the defence.

Gao Zhenyu, the deponent, lacks valid authority to act for the Plaintiff’s company and therefore does not have personal knowledge of the facts affirmed.

Gao’s affidavits included inadmissible evidence, and the facts asserted were hearsay.

The deponent was never in Malaysia to affirm such affidavits.

Plaintiff had initiated an action against D1 in BA-22NCC- 2-01/2024, and judgment in default of appearance was entered against her on 4.4.2025. Therefore, filing of this suit against D1 is a multiplicity of proceedings and res judicata.

Gao’s affidavit was oppressive, prejudicial, scandalous, and irrelevant to the issues to be determined in the security for cost and application under O14A.

Plaintiff objected to this application and stated as follows:

The D2 and D3’s claims and/or allegations are made broadly with no substantiations or evidence whatsoever, intended to delay the Plaintiff’s rightful or genuine claim.

There is no breach of the Court’s instruction on the delayed filing of the pleading.

Plaintiff’s affidavit was a rebuttal to the D2 and D3 allegations in their affidavit in support, hence, should be allowed to state the merits of the claim.

Plaintiffs are entitled to refer to the relevant facts to oppose D2 and D3’s applications.

Gao Zhenyu has locus standi, valid authority from the Plaintiff, and sufficient personal knowledge to affirm the affidavits.

D2 and D3 failed to identify which parts of Gao’s affidavits are scandalous, irrelevant, or oppressive to warrant striking out.

Plaintiff’s director had authorized Gao Zhenyu to represent and act on their behalf in relation to matters against the Defendants, including giving evidence in the Malaysian Court in the current suit.

Gao Zhenyu is the business representative engaged by the Plaintiff to handle its matters in Malaysia.

Gao Zhenyu does have personal knowledge and belief based on documents of the Plaintiff.

Gao Zhenyu had also established, through his records, that the Plaintiff had, amongst others, professional and legal dealings with D2 and D3, and that they themselves had not denied being contacted by Gao through D3’s email at vslfirm@yahoo.com and handphone number.

The Letter of Authorization dated 28.3.2025 cannot be challenged, and it was correctly issued by the Plaintiff.

Gao Zhenyu was in Malaysia at the relevant times for the signing of the Plaintiff’s Affidavit in Reply. Analysis and Findings

Before going into the submissions of both parties, Plaintiff raised a preliminary objection regarding D2 and D3’s affidavit in reply in enclosure 45, particularly paragraphs 5 to 22 of the said affidavit. It was submitted that the affidavit contravenes Order 41 Rule 5 of the ROC.

Order 41 Rule 5 and Rule 6 provide: “5. Contents of affidavit.

Subject to Order 14, rules 2(2) and 4(2), to paragraphs

of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds hereof.

Scandalous matter in affidavits. The Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.”

Upon perusing the sub-headers in D2 and D3’s affidavits, I am inclined to agree with the Plaintiff that such assertions are not statements of fact for which they had personal knowledge, nor are they statements of information or belief. Those paragraphs were submissions and opinions of D2 and D3 regarding the law and suggestion as to how this Court should decide this matter. Therefore, I find that those assertions do not comply with Order 41, Rule 5(1), of the ROC.

Plaintiff relied on the case of Kassim bin Sulong & Anor v Guthrie Estates Holdings Ltd & Ors (1993) 3 MLJ 303, where it was held that submissions of counsel and opinion of law are to be struck out from an affidavit. I have no reason not to agree with the above decision. Consequently, D2 and D3’s affidavit in enclosure 45 will not be considered.

Coming back to the expunging application, I again refer to the requirements under Order 41 Rule 5(1) and (2) of the ROC, which allows an affidavit to contain facts which are within the personal knowledge of the deponent and include a statement of information or belief with the sources and grounds hereof.

It is pertinent to note that D2 and D3 had submitted to include Gao’s affidavit in enclosure 40 to be expunged together with 26 and 30. As this was not specifically prayed for in the application, I will ignore the submission referring to enclosure 40.

D2 and D3 regard the deponent, Gao Zhenyu, as an unverified stranger and submitted that all assertions made by Gao are inadmissible hearsay and baseless belief.

I find it somewhat perplexing for D2 and D3 to know the position of Gao as “not knowing anything” to represent the Plaintiff in this action against them, whilst asserting, as their defence, that D2 and D3 were never engaged by the Plaintiff to represent them in the dispute against D1. From the submission, D2 and D3 appear to know that Gao was a mere agent, an outsider to the Plaintiff company, and that Li Long was also an unverified individual and a “phantom director” of the Plaintiff. So much is known about the Plaintiff by D2 and D3, whilst they allege they had no relationship prior to this.

I am of the considered view that Gao Zhenyu, being the business representative of the Plaintiff whom the Plaintiff had engaged to handle matters in Malaysia, was authorized by the Plaintiff’s company and therefore should be allowed to affirm the Plaintiff’s affidavit in this action. The truthfulness or accuracy of the facts deposed is still open to dispute between the parties, and this Court will later decide the weight to be given to the facts posited.

Another issue raised was on what D2 and D3 refer to as “stay of proceedings”. This “stay” refers to D2 and D3’s request that the Plaintiff should not file their reply to the defence until the disposal of the interlocutory applications. I allowed the request, at that juncture, as D2 and D3 vigorously submitted before me, that if Plaintiff were to reply to their defence, Plaintiff would again be allowed to “reveal” prejudicial facts which would affect D2 and D3 in practising their profession.

To maintain the status quo, I allowed Plaintiff to hold off on filing their reply to the defence, which Plaintiff had no issue with. Therefore, the “stay” which was referred to by D2 and D3 was merely a stay of filing of the pleadings and not a stay on the whole proceeding.

Unfortunately, D2 and D3 now contended that Gao’s affidavit in reply to their application had stated the merits of the case, thereby revealing the disputed factual circumstances that D2 and D3 had attempted to halt, and was highly prejudicial to them.

Upon reading Gao’s affidavits, I am of the view that they contain assertions relevant to the rebuttal and reply to D2 and D3’s affidavits in support of both the applications (enclosures 7 and 20). I agree with the Plaintiff that they should be allowed to rely on defences available, including to state the merits of its claim to defend D2 and D3’s application for security for cost (see S&S Power Switchgear Ltd v Toprank Corp Sdn Bhd (2005) 2 MLJ 69) and also relevant to defend themselves from the application for determination on the question of law under Order 14A (see the Federal Court case of Kerajaan Negeri Kelantan v Petroliam Nasional Bhd and other appeals (2014) 6 MLJ 31).

D2 and D3 then challenged Gao’s authority to affirm the affidavits, stating that Gao was an agent and therefore could not be an “arbiter of his own authority”. The alleged “letter of authorization”, according to D2 and D3, is a lynchpin and worthless as it was signed by Li Long, being an unverified individual. D2 and D3 further disputed the Plaintiff’s legal existence and capacity to sue in this jurisdiction; therefore, they lack locus standi.

With regard the above, I am of the opinion that the Plaintiff being a company incorporated in China, upon authorizing Gao Zhenyu (by Li Long, who is the director of the Plaintiff’s company) to depose the affidavit on their behalf, and Gao having allegedly sufficient knowledge to affirm the Plaintiff’s affidavit, should be allowed to do so to represent the company in their action against the Defendants.

The Plaintiff states that Gao Zhenyu is their business representative. Suppose D2 and D3 were to challenge the lack of locus standi or authority, the burden is on them to show that Gao was a total stranger. Merely asserting the possibility of Gao not having sufficient knowledge is not enough to negate his role and function in Plaintiff’s company. Whether his averment can be questioned on its veracity is a different matter. The affidavit itself should not be made inadmissible (refer to the case of Mega Sakti Sdn Bhd v Wong Wai Hoi & Ors [2008] 5 MLJ 321).

In addition, it was submitted that Gao, or most probably known or referred to as “Michael Gao” in the Statement of Claim, was involved in the facts leading to the Plaintiff filing the current action against the Defendants. WhatsApp communications and his emails were exhibited to show that Gao was a real person and not an unverified individual, as referred to by D2 and D3. Again, the truthfulness of the facts asserted is of a different consideration.

Finally, as a reminder, I reiterate that to strike out an affidavit as scandalous, irrelevant, or oppressive, it would be of assistance to determine the meaning of “scandalous, irrelevant and oppressive”.

In Murray v Epsom Local Board (1897) 1 Ch 35, the Court held that “scandalous” generally refers to matters that improperly cast a derogatory light on someone, usually the party to an action, with respect to moral character, or to the use of repulsive language. Similarly, in the case of Wee Building Materials Sdn Bhd v Muhamed Bin Maidin (1996) CLJU 299, it was held as follows: “[9] Next, can the defendant possibly rely on “oppressive” as ground. “Oppressive”, according to the Concise Oxford Dictionary means: - “1. Harsh or cruel 2. Difficult to endure.” On the matters deposed in the affidavit of Serene Ong, I do not think those matters could possibly come within the meaning of “oppressive”. In fact, those matters are relevant for the purpose of determining the issues before this Court.”

More recently, in the case of Tan Sin Wah v Yeow Siow Lim

7 CLJ 533, it was held: “[6] The respondent in her affidavit also raised a second preliminary objection. This relates to statements deemed “mengaibkan” which I take to be referable to scandalous matters in affidavits. However, I am mindful that although the Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive under O. 41 r. 6 of the Rules of Court 2012, an application must first specify which part of the affidavit falls under which of the said three heads (see Wee Building Materials Sdn Bhd v. Muhamed Maidin [1996] 1 LNS 299; [1997] 3 AMR 2634). The respondent however does not specify which part of the affidavit of the applicant or that of any other party is alleged to be scandalous, irrelevant or oppressive. As such, no order for striking out will be entertained. Notwithstanding, the totality of the affidavit evidence proffered by both parties has been evaluated in considering the weight of the same in supporting the contention of the respective parties.”

On the meaning of “irrelevant”, I refer to the case of Sangeet Kaur Deo v Chief Justice of the Federal Court of Malaysia

CLJU 2312, which states as follows: “Definition of “irrelevant” [14] It construing what is meant by “irrelevant”, it would suffice to state that an averment is irrelevant if it does not relate to the fact in issue of the case at hand or does not have any bearing to the relief prayed for by parties to the proceedings..”

Based on the above authorities, I find that the Plaintiff’s affidavits do not fall within the meaning of scandalous, irrelevant, or even oppressive; thus, this application to expunge is unsubstantiated.

On D2 and D3 request for this Court to exercise its inherent jurisdiction under Order 92 of the ROC, I am of the opinion that such power is discretionary and should only be exercised with great circumspection, sparingly and in exceptional cases (see Chung Kiaw Bank Ltd v Multidev Sdn Bhd (1979) 1 MLJ 93). I do not find that those elements exist here in this application to warrant such consideration.

Upon careful consideration of the submissions by D2 and D3, which, unfortunately, strayed from the application’s primary focus, I find that the allegation that Gao’s affidavit was scandalous, irrelevant, or oppressive does not appear sound, valid, or reasonable.

Based on the above reasons, enclosure 32 is dismissed with costs of RM2000, subject to the allocator. Dated this: 15th December 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR For the Plaintiff : Megan Choo Wen Shin Messrs Chang Chooi & Co. For the 2nd and 3rd Defendants: Vinod Sharma A/L Balbir Singh Messrs Vinod Sharma Law Firm For the 4th Defendant : Mohd Khairil Nizam bin Mohd K Jabayee (Unrepresented)