SHELL MALAYSIA TRADING SDN BHD v Hasdiana Binti Hashim (BA-24NCC-15-02/2025)

No full and frank disclosure on affidavit in breach of Order 29 Rule 1(2A) of the Rules of Court 2012

There are no serious issues to be tried according to the American Cyanamid or Keet Gerald test for interlocutory injunctions Full and frank disclosure [12] As noted, the Plaintiff had initially moved the Court for an ex-parte Order substantially for the relief sought in the Originating Summons. The application was directed to be served to be heard inter-partes, and subsequently, counsel agreed that it was redundant as the Originating Summons could be heard and disposed of within the same time frame. As both parties have had the opportunity to set out their respective case in respect of the Originating Summons, any issue of non-disclosure was superseded by events and was not considered by this Court. Serious Issues to be Tried [13] For reasons that were not articulated at the hearing and therefore deemed not to be in issue, the Defendant is not contesting that she is bound by the 1995 Contract. This Court accepted this and premised its decision on this concession i.e. that the Defendant considered herself bound by a valid arbitration clause in Clause 9 of the 1995 Contract that reads: [14] Section 8 of the AA provides: except [15] The concurrent jurisdiction of the Court is accordingly being specifically invoked according to sections 11 and 19J of the AA: Sections 11 Arbitration agreement and interim measures by High

A party may, before or during arbitral proceedings, apply to a High Court for any interim measure and the High Court may make the following orders for the party to-

maintain or restore the status quo pending the determination of the dispute;

take action that would prevent or refrain from taking action that is likely to cause current or imminent harm or prejudice to the arbitral process;

provide a means of preserving assets out of which a subsequent award may be satisfied, whether by way of arrest of property or bail or other security pursuant to the admiralty jurisdiction of the High Court;

preserve evidence that may be relevant and material to the resolution of the dispute; or

provide security for the costs of the dispute. Section 19J Court-ordered interim measures

The High Court has the power to issue an interim measure in relation to arbitration proceedings, irrespective of whether the seat of arbitration is in Malaysia.

The High Court shall exercise the power referred to in subsection (1) in accordance with its own procedures in consideration of the specific features of international arbitration.

Where a party applies to the High Court for any interim measure and an arbitral tribunal has already ruled on any matter which is relevant to the application, the High Court shall treat any findings of fact made in the course of such ruling by the arbitral tribunal as conclusive for the purposes of the application. [16] The above are provisions that empower the Court to grant interim measures primarily in aid of contemplated arbitration proceedings or where the arbitral tribunal has not been constituted or in circumstances where the arbitrator cannot adequately remedy. In this case, the arbitration proceedings had not been commenced at the time this action was filed with an ex-parte application for interim relief on a Certificate of Urgency. [17] The applicable test for when interim measures may be granted is not the American Cyanamid or Keet Gerald in that the requirement that there be a serious issue to be tried is modified in the light of section 8 of-making function. This Court adopts the view expressed by Justice Ong Chee Kwan in Padda Gurtaj Singh & Ors v Axiata Group Bhd & Ors [2022] 8 CLJ 671 that: [61] Accordingly, in the exercise of the Court's discretion whether to issue an interim injunction as an interim measures under Section 19J(1) or Section 11(1) of the AA 2005, the application of the American Cynamid test may not be appropriate. There is no necessity for the Court to determine the question whether there is a serious issue to be tried. The fact that matter has been brought before the arbitral tribunal in itself is premised on the existence of a 'dispute'. If the existence of this 'dispute' is challenged, surely then it must be for the arbitral tribunal to determine. It seems to me that if the Court were to make a finding at the application for interim measures that there is a serious issue to be tried in respect of the dispute, the Court would have prejudged the matter, taking it out of the hand of the arbitral tribunal, if an application is made to challenge the existence of such dispute later. [Emphasis added] In this case however, the arguments put forward by the Defendant were premised entirely on the merits of the dispute that required this Court to make a final determination on the very issue in dispute between the parties.

Estoppel [18] The Defendant stated on affidavit that she would concede that the 1995 Contract will expire on 23-4-2025 and that there is accordingly no dispute to refer to arbitration. This position is part of the substantive arguments made by the Defendant on why the expiration date cannot be 2-10-2028 as contended by the Plaintiff i.e. the Plaintiffs own correspondence and conduct in discussions on the renewal of the 1995 Contract pointed to 23-4-2025 as its expiration date. [19] However, the Plaintiff contends that the expiration date of the 1995 Contract is on 2-10-2028 and that there are other considerations in relation to the charge of the Land. It was entirely unclear to this Court, the nature and scope of contractual rights being asserted, whether there is also an agreement to license or lease the Land in addition to or in conjunction with the promise to operate a Shell station on the Land for 30 years. As such, there is still a dispute. [20] The issue in dispute between the parties is ultimately a matter of construction of the 1995 Contract and this is within the domain of the arbitrator to decide in the arbitration proceedings which have since been commenced by the Plaintiff. It is for the arbitrator to determine if the e construction in any way and indeed, if there are facts that tend to set up or defeat the alleged estoppel.

(ii) Privity of Contract [21] On this point, the Defendant contended that the Plaintiff cannot rely on Clause 1(b) of the 1995 Contract to imply that it has a 30-year license to supply petroleum products to the operator of the Shell station [now a third party] as the clause only binds the operator and not the Defendant, based on the doctrine of privity of contract. Clause 1(b) of the 1995 Contract reads as follows: [22] The Defendant also contended for the same reason i.e. that Clause 1(b) of the 1995 Contract only affects rights and obligations between the Plaintiff and the operator, and that there can be no reference to arbitration since the operator is not a party to the arbitration agreement. [23] It is true that the operator of the Shell Station today is not a party to the 1995 Contract. However, it was tolerably clear to this Court (without expressing any view on the merits of this construction) that Clause 1(b) of the 1995 Contract is being that the intention of the parties to the 1995 Contract was that the petrol station on the Land may only be operated as a Shell station for 30-years. The Defendant appears to have missed the point, which is that these are arguments in connection with the disagreement between the parties as to when the 1995 Contract should end, and that these are matters properly within the purview of the dispute being referred to arbitration. Other considerations [24] The remaining elements of the American Cyanamid test do apply damages and balance of convenience around the possible loss of market share and reputational damage in the event that the Shell station is forced to abruptly close down. Conclusions [25] For the above reasons, this Court allowed the following injunctions prayed for in the Originating Summons to preserve the status quo pending determination of the arbitration or 1-10-2028, whichever is sooner, subject l undertaking as to damages:

An order restraining the Defendant, whether by herself or through her agents, servants, representatives or otherwise, from taking any steps or measures to: - i. repossess the Land; or ii. evict the Plaintiff and/or its agents, servants, representatives, licensees and operator from the Station or Land, as the case may be; or iii. prevent the Plaintiff and/or its agents, servants, representatives, licensees and operator and/or customers from entry or access to the Station or Land as the case may be.

That the Plaintiff and/or its agents, servants, representatives, licensees and operator shall be allowed to occupy, and/or remain in occupation on the Land and be allowed to carry-on supplying for resale all petroleum products to meet the operational needs of the Station including, but not limited to the ongoing business and operation of the Station [26] Costs following the event was ordered in the sum of RM7,500.00 Bertarikh : 29 April 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: HR Dipendra (with Hoo Kit Yee), Messrs Ramesh Dipendra Jeremiah Law Untuk Defendan: Thanashri K Suppaya (with Mishant Thiruchelvam), Messrs Shri & Partners