Syarikat Perumahan Negara Berhad v Cosmic Master Development Sdn. Bhd. (JA-24NCvC-662-05/2024)

Enclosure 16 is the Plaintiff's ex parte application under Order 52 rule 3 and Order 92 rule 4 of the Rules of Court 2012 (“ROC 2012”) for leave to commence committal proceedings against the Defendant and its two directors, for alleged disobedience of Clause 1 of the Pre-Action Discovery Order dated 13.10.2024 (“the Order”). I shall refer to the Defendant and the two directors collectively as “the alleged contemnors”.

The material facts are largely undisputed. The Plaintiff appointed the Defendant as design-and-build contractor for a housing project known as Taman Seri Molek Perdana (“the Project”) in 2007. The Plaintiff terminated the Defendant in 2019. On taking over the Project the Plaintiff says it found incomplete sale records, missing sale and purchase agreements and competing claims to units. Several purchasers, on receiving termination notices, asserted that they had paid the Defendant directly and produced receipts. The Plaintiff, unable to verify those payments, filed this Originating Summons for pre-action discovery under Order 24 rule 7A of the ROC 2012 on 24.05.2024.

On 13.10.2024 the Court granted the Order. Clause 1 of the Order required the Defendant, its servants and/or agents, within seven (7) days from the date of the Order, to file an affidavit stating whether the documents specified in “Schedule A” to the Order are or were in their possession, custody and control and if not, since when and what had become of them.

The Order bore three penal endorsements under Order 45 rule 7 ROC 2012, addressed respectively to the Defendant and to each of the two directors, Chok Kim Sin (NRIC NO. : 611007-05-5139) and Liang Kuai Heng (NRIC NO. : 610327-06-5278), by name.

The Plaintiff's evidence as to service is as follows. On 15.10.2024 the Plaintiff emailed a covering letter and a draft of the Order to the Defendant's then solicitors. The sealed Order was filed on 21.10.2024 (Enclosure 15) and emailed to the Defendant's then solicitors on 22.10.2024. The Plaintiff did not at any time effect personal service of the Order on the Defendant or on either director.

The Plaintiff filed Enclosure 16 on 08.11.2024. On 10.12.2024 the Defendant's present solicitors filed a Notice of Change of Solicitors and a List of Documents (Enclosure 20), comprising some 790 pages relating to 27 units, with an affidavit verifying that list (Enclosure 33). The Defendant maintained, both in Enclosure 21 and at the case management on 11.12.2024, that the Order concerned 317 units and over 500 documents dating back to 2007, that it had traced and filed what it could and that full compliance within seven days was not possible.

The Defendant was wound up on 20.03.2025. By directions given on 30.09.2025 and 19.05.2026 the Plaintiff filed supplementary submissions (Enclosures 31 and 36) addressing the position of the directors and the effect of the winding up.

An application for committal proceeds in two stages –

leave under Order 52 rule 3 ROC 2012; and

if leave is granted, the substantive committal application.

At the leave stage, the applicant must show a prima facie case of contempt. The exercise is an ex parte vetting process and the Court does not at this stage decide the merits. [See : Dato' Oon Ah Baa & Ors v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors [2003] 7 CLJ 81, Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] 4 CLJ 113, Dewan Perniagaan Melayu, Malaysia, Negeri Johor v. Menteri Besar Johor & Ors [2016] 1 CLJ 52 and Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441].

The threshold is not high. But committal is quasi-criminal in character, for it touches the liberty of the subject and the procedural safeguards built into the rules require strict compliance. [See : Tan Sri Dato' (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458]. As Edgar Joseph Jr J observed in Messrs Hisham, Sobri & Kadir v Kedah Utara Development Sdn Bhd & Anor [1988] 2 MLJ 239, a person ought not to be penalised unless he has both a fair opportunity to comply and the capacity to do so.

It follows that where the applicant's own Statement and verifying affidavit disclose that the mandatory prerequisites to enforcement by committal are not and cannot be met, no prima facie case of contempt is made out and leave must be refused. That is what occurred in One Gases Sdn Bhd v Marine Fabrication Technology Sdn Bhd [2022] MLJU 283, where leave was refused because the Order 52 Statement disclosed no service of the order on the proposed contemnors.

The following issues arise –

whether the Order was served in compliance with Order 45 rule 7 of the ROC 2012, namely personally and before the expiry of the time fixed for compliance;

whether, in any event, a prima facie case of a wilful or contumacious breach is disclosed;

whether leave to commit the directors lies, they not having been parties to the Originating Summons; and

the effect of the Defendant's winding up on the application.

The Order is an order requiring an act to be done. Its enforcement by committal is governed by Order 45 rule 5 ROC 2012 and as to the prerequisites of service, by Order 45 rule 7 ROC 2012. Rule 7(2) ROC 2012 provides that an order shall not be enforced under rule 5 unless –

a copy of the order has been served personally on the person required to do the act; and

in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

Rule 7(3) ROC 2012 imposes the same twin requirements, in respect of the officer against whom committal is sought, where the order requires a body corporate to do an act.

I observe that two features of the Plaintiff's own evidence are decisive. First, the Order was never served personally on the Defendant or on either director. It was emailed to the Defendant's solicitors. Second, the sealed Order was emailed only on 22.10.2024, that is, after the seven-day period for compliance had expired on or about 20.10.2024.

I am satisfied that the penal endorsement is not in issue. The Order carried penal notices in proper form addressed to the Defendant and to each director by name. The objection considered in Inter Heritage (M) Sdn Bhd v ASA Sports Sdn Bhd [2008] MLJU 671, that the order bore no appropriate penal endorsement, therefore does not arise here.

The Plaintiff submits that –

the actual or constructive knowledge of the Order cures any want of personal service and the Court may in any event dispense with personal service under Order 45 rule 7(7);

the Defendant waived, or is estopped from raising, any objection to service because it attempted to comply and sought time; and

the service objection was not pleaded in the Defendant's affidavit.

The Plaintiff relies, among others, on T O Thomas v. Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151, Saraswathy Kandasami v. Datuk Saravanan Murugan & Another Appeal [2022] 2 CLJ 202, Able Oils & Fats Sdn Bhd v. Tan See Meng & Ors [2025] 2 CLJ 550 and Teoh Seow Chiew (menyaman atas kapasitinya sebagai pemegang jawatan di Persatuan Kediaman Country Heights Damansara Kuala Lumpur) & Ors v Mega Palm Sdn Bhd & Anor [2021] MLJU 2683; and on waiver and approbation/reprobation, on Nabors Drilling (Labuan) Corporation v. Lembaga Perkhidmatan Kewangan Labuan [2020] 6 MLRA 314 and Cheah Theam Kheng v City Centre Sdn Bhd & Other Appeals [2011] 2 MLRA 660; and, on pleading, on Suthan Mookaiah & Anor v. Zed Mobile Malaysia Sdn Bhd & Anor [2023] 1 MLRH 708.

The Defendant submits that –

The Order was never served personally on the Defendant or its directors and was in any event served outside the seven-day compliance period, contrary to Order 45 rule 7(2) and (3) ROC 2012;

these are mandatory requirements; and

non-compliance is fatal.

The Defendant relies on Samsudin bin Mohamad Fauzi & Anor v Yayasan Ihsan Rakyat [2020] MLJU 2567, Wong Chim Yiam v. Bar Council [2019] 2 CLJ 390, Capital Insurance Bhd v BS Sidhu [1996] 3 MLJ 1 and One Gases Sdn Bhd v Marine Fabrication Technology Sdn Bhd [2022] 1 LNS 318.

I deal first with personal service, then with the timing requirement and then with the Plaintiff's answers of dispensation, waiver and pleading.

I accept that want of personal service may, in an appropriate case, be dispensed with under Order 45 rule 7(7) ROC 2012 where the proposed contemnor has actual knowledge of the order. [See : T O Thomas, Able Oils & Fats and Teoh Seow Chiew]. The Defendant was a party to the Originating Summons and was represented when the Order was made. It does not squarely deny knowledge of the Order. Therefore, had want of personal service been the only defect, I would have dispensed with it under rule 7(7) ROC 2012.

The timing requirement is different and it is decisive. Order 45 rule 7(2)(b) and (3)(b) ROC 2012 require that an order to do an act be served before the time fixed for doing it has expired. The seven days ran from 13.10.2024 and expired on or about 20.10.2024. Even on the Plaintiff's own reckoning, its letter of 15.10.2024, its Order 52 Statement (Enclosure 18) and its supporting affidavit (Enclosure 17) each treated the last day for compliance as 21.10.2024. The sealed Order reached the Defendant only on 22.10.2024. On either date, service came after the time for compliance had run. The Court of Appeal has held this requirement to be mandatory. In Samsudin bin Mohamad Fauzi & Anor v Yayasan Ihsan Rakyat [2020] MLJU 2567 the Court held that no order requiring a person to do an act may be enforced because the order was not served personally before the expiration of the time within which the act was required to be done. In Wong Chim Yiam the Court of Appeal, observing that committal touches the liberty of an individual, reiterated that an order requiring a person to do an act shall not be enforced unless served personally before the expiry of the time for doing it. The Court in Capital Insurance Bhd confirms that the requirement is not excused merely because counsel was present when the order was made.

Moreover, I observe that the Plaintiff's dispensation authorities do not meet this point. They concern the personal service of prohibitory or consent orders, the breach of which lay in doing a forbidden act of which the contemnor plainly had notice. The statutory knowledge exception on which Saraswathy Kandasami turned is Order 45 rule 7(6) ROC 2012, which applies to orders requiring a person to abstain from an act. It has no application to an order requiring a person to do an act, such as the present.

For a mandatory order, the relevant requirement is the timing requirement in rule 7(2)(b)/(3)(b) ROC 2012, which protects the respondent's fair opportunity and capacity to comply. [See : Messrs Hisham, Sobri & Kadir]. Knowledge cannot supply what late service has destroyed. The difficulty is sharper still on these facts. What the rule requires to be served is a sealed copy of the order. This was discussed in Capital Insurance Bhd, where the Court of Appeal held that a person is fixed with contempt only once he has been served with a sealed copy of the order in accordance with the rules and has then disobeyed it. Here what was served on 15.10.2024 was only a draft; the sealed Order was not filed until 21.10.2024 (Enclosure 15). No sealed Order capable of being served under Order 45 rule 7 ROC 2012 therefore existed within the seven days at all. A person cannot be said to have neglected to do, within seven days, an act which the sealed order requiring it reached him only after the seven days had passed, still less where that sealed order did not come into existence until the period had run. Knowledge of the terms of the Order, whether from the earlier draft or from being represented when it was made, does not cure that.

Nor do waiver and estoppel assist the Plaintiff. The strict-compliance requirements of Order 45 rule 7 ROC 2012 exist for the protection of the Court's process and the liberty of the subject. They are not a private right capable of being waived, nor can a respondent be estopped from relying on the Court's want of power to enforce by committal.

The principle against approbation and reprobation in Nabors Drilling and Cheah Theam Kheng concerns parties resiling from a position taken on their substantive rights. It does not empower the Court to commit where the rules forbid enforcement. In any event the Defendant did not approbate the Order. It put the Plaintiff to proof of service (paragraph 6 of Enclosure 21) and squarely raised both the seven-day point and the impossibility of compliance (paragraph 8). An attempt to trace and produce some documents is not an election to abandon a procedural safeguard.

The pleading objection founded on Suthan Mookaiah also fails. That case concerned a factual issue raised for the first time in submission. The dates of service here are not a new fact requiring proof by the Defendant. They are deposed to by the Plaintiff itself in Enclosures 17, 18 and 22. The legal consequence of the applicant's own facts is a matter for the Court.

I therefore find that the mandatory prerequisites of Order 45 rule 7 ROC 2012 are not satisfied and on the Plaintiff's own evidence cannot be satisfied. On the face of the Plaintiff's Statement and affidavits the Order could not be enforced by committal. No prima facie case of contempt is disclosed. [See : One Gases]. Accordingly, Enclosure 16 fails on this ground alone.

It is trite that contempt must be wilful. Conduct that is casual, accidental or unintentional will not do. At the substantive hearing the breach must be proved beyond reasonable doubt and where more than one inference is open the inference most favourable to the alleged contemnor is to be drawn. [See : Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441; Lee Chang Yong v Teng Wai Yee [2017] MLJU 1841; Merino-ODD Sdn Bhd v PECD Construction Sdn Bhd [2010] MLJU 2201].

The Plaintiff's case is that the Defendant sought no extension of time, did nothing for some two months, never filed the affidavit that Clause 1 actually required, and never produced the bank statements sought. This discloses deliberate disregard.

The Defendant's case is that the Order embraced 317 units and over 500 documents going back to 2007, that compliance within seven days was not feasible, that it engaged solicitors and traced and filed what it could (Enclosure 20) and that there was no deliberate contempt.

I accept that the List of Documents in Enclosure 20 is not, of itself, the affidavit which Clause 1 required and that the Defendant's compliance was incomplete. But incompleteness is not contumacy. The Order required, within seven days an exercise involving several hundred documents spanning some seventeen years. On the material before me, compliance within that window was not realistically feasible. The Defendant engaged solicitors, traced the documents relating to 27 units and filed 790 pages. Reading the facts most favourably to the alleged contemnors, as I must on a charge of this character, the inference of wilful or contumacious disregard is not made out even to the prima facie standard.

The failure to apply for an extension of time is a fair criticism, but it does not convert an arguable impossibility into a wilful contempt. Faced with an order incapable of timely compliance, the appropriate course was an application to vary the Order, not the committal of the alleged contemnors.

Accordingly, the application fails on this ground also. Issue 3 : The Directors, Not Being Parties To The Originating

A company acts only through its human agents and a director who, having knowledge of an order binding the company, fails to cause the company to comply may be personally liable in contempt. [See : Datuk Hong Kim Sui v Tiu Shi Kian & Anor; Albert Teo Chin Kion v Tiu Shi Klan & Anor [1985] 1 MLJ 145 and [1987] 1 MLJ 345; Societe Jas Hennessy & Co & Anor v Nguang Chan (M) Sdn Bhd [2005] 4 MLJ 348; IJM Corporation Bhd v Harta Kumpulan Sdn Bhd (Part 2) [2007] MLJU 822].

Order 45 rule 5(1)(b) ROC 2012 permits an order of committal, with leave, against a director or other officer of a body corporate and “officer” includes a director (section 2, Companies Act 2016 [Act 777]). The directors' non-joinder to the Originating Summons is not, of itself, a bar and the Order carried penal notices addressed to each of them by name.

In my judgment, two matters nevertheless defeat leave against them. First, Order 45 rule 7(3) ROC 2012 requires the order to be served personally on the very officer against whom committal is sought and before the expiry of the time for compliance. Neither director was served at all, still less personally and in time. The dispensation argument is at its weakest where the liberty of an individual is directly in issue and the timing defect identified under Issue 1 applies to the directors with at least equal force. Second, for the reasons given under Issue 2, no prima facie case of a wilful breach by the directors is disclosed.

Leave against the second and third alleged contemnors is therefore refused.

The Defendant was wound up on 20.03.2025. The Plaintiff submits, relying on Re CMN International Sdn Bhd (In Liquidation) [2020] MLJU 2356, that committal proceedings are personal to the directors and are not execution against the company's estate, so that section 472(3) of Act 777 does not apply and no leave under sections 471 or 472 of Act 777 is required, the alleged default having pre-dated the winding up.

I accept that section 472(3) of Act 777 does not bar committal proceedings that are personal to the directors and that the alleged default pre-dated the winding up. To that extent the winding up is not, of itself, a bar to proceeding against the directors.

But two consequences follow. First, enforcement of an order against a body corporate lies, under Order 45 rule 5(1)(b) ROC 2012 and as Re CMN International itself holds, against the directors and not against the company. Therefore, leave to commit the Defendant company (the first alleged contemnor) is misconceived and cannot be granted. Second, the winding up leaves the directors as the only possible objects of the application and as against them the application fails for the reasons given under Issues 1 to 3.

For these reasons the Plaintiff has not established a prima facie case of contempt fit for the grant of leave. The mandatory prerequisites of Order 45 rule 7 ROC 2012 are not met on the Plaintiff's own papers, no wilful breach is in any event disclosed, leave does not lie against the Defendant company and the position is not improved, as against the directors, by the winding up.

I therefore make the following order –

Enclosure 16 is dismissed; and

no costs are ordered. Dated : 10 June 2026. -signed- (DR NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Plaintiff : : Marina binti Tiwol Messrs. Azmi & Associates Counsel for the Defendant : Messrs. Ong Ban Chai & Co. (Johor Bahru)