Uzma Engineering Sdn Bhd v 1. ) Khan Co. Ltd (WA-22C-24-03/2021)

1.

KONG OFFSHORE MALAYSIA SDN BHD (Company No.: 1190436-D) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 143) Introduction [1] In the matter before this Court at enclosure 143, the First Defendant (D1) had applied (Enclosure 143) to inter alia enforce the undertaking as to damages (Undertaking) provided by the Plaintiff in its application for an injunction filed on 25.3.2022 (Enclosure 53) and directions for an assessment of damages suffered by D1. [2] The grounds relied on by D1, which also shows the brief background to the matter at hand is as follows:- S/N zw/l4fxnbEeKGkashPuhg

2.1 On 25.03.2022, the Plaintiff filed a Notice of Application for an injunction to prevent D1 to commence and/or continue with the Arbitration Proceedings in the Singapore International Arbitration Centre (“SIAC”) via Enclosure 53 (“The Plaintiff’s Injunction Application”).

2.2 An undertaking was given by the Plaintiff as to damages in the Plaintiff’s Affidavit in Support (Enclosure 54) of its Injunction Application, on that basis, this Honourable Court, on 03.04.2022 granted and Ex-Parte injunction order, and on 27.4.2022, an Ad Interim Injunction order to the Plaintiff pending the disposal of the Plaintiff’s Injunction Application, which prevented D1 from proceeding with the Arbitration proceedings in SIAC.

2.3 On 22.5.2023, this Court dismissed the Plaintiff’s Injunction Application with costs of RM5,000.00 to be paid to D1 by the Plaintiff. On the issue of damages to be paid, this Court directed the 1st Defendant to file a formal application.

2.4 In view thereof, D1 prayed for directions for an assessment of damages before this Court for the damages suffered by D1 arising from the Plaintiff’s Injunction Application and the Ad Interim Injunction Order. [3] This Court had on 4.8.2023, after hearing the respective counsels for the parties on 28.7.2023, delivered its decision on Enclosure 143 and allowed the same with no order as to costs. S/N zw/l4fxnbEeKGkashPuhg Findings [4] This court had on 22.5.2023 when dismissing Enclosure 53 specifically informed the parties that the Court had directed that any application regarding the undertaking as to damages be made by way of a formal application to this Court. [5] The Plaintiff had in its submissions contended that Enclosure 143 must fail and be dismissed as a. Enclosure 143 does not fulfill Order 37 rule 1 of the Rules of Court 2012 b. D1 does not meet the requirement to enforce the Plaintiff’s Undertaking c. D1 did not apply to set aside the Plaintiff’s injunction to determine whether the Injunction was properly granted d. There is no finding that the Ex Parte Injunction and Ad Interim Injunction was wrongfully granted e. D1 did not suffer any losses or damages from the Ex Parte Injunction and Ad Interim Injunction [6] From the records, on 22.5.2023, I had dismissed the Plaintiff’s application under Enclosure 53 with costs of RM5,000 to be paid to D1 by the Plaintiff and allowed D1’s Stay Application under Enclosure 132 with costs of RM20,000 and directed that D1 was to file a formal application for assessment of damages vis a vis the Plaintiff’s Injunction and Ad Interim Injunction Order. S/N zw/l4fxnbEeKGkashPuhg [7] From this, it is clear that this Court had therefore not dismissed nor made any order that the undertaking as to damages were not allowed and it was on this basis that D1 had then filed Enclosure 143 to enforce the undertaking as to damages given inter alia in enclosure 53. Order 37 rule 1 and 4 of the Rules of Court 2012 [8] Enclosure 143 is filed pursuant to Order 37 rule 1 and 4 of the Rules of Court 2012 which provides

Where judgment is given for damages to be assessed and no provision is made by the judgment as to how they are to be assessed, the damages shall, subject to the provisions of this Order, be assessed by the Registrar, and the party entitled to the benefit of the judgment shall, within one month from the date of the judgment, apply to the Registrar for directions and the provisions of Order 34 shall, with the necessary modifications, apply. ….

The attendance of witnesses and the production of documents before the Registrar in proceedings under this Order may be compelled by subpoena, and the provisions of Order 35 shall, with the necessary adaptations, apply in relation to those proceedings as they apply in relation to proceedings at the trial. [9] The Plaintiff contends that there must first be a judgment for damages to be assessed under to Order 37 rule 1 of the Rules of Court 2012 and relied on some cases, which I will refer to herein after. S/N zw/l4fxnbEeKGkashPuhg [10] I find from the facts of the case of Middy Industries Sdn Bhd & Ors v Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511 relied on by learned counsel for the Plaintiff to support their above contention, concerned an issue where the respondent therein had applied to strike out the appellants' said notice on the grounds that there was no order of the court directing assessment of damages and that the right to enforce an undertaking as to damages was discretionary and not automatic. This case is thus different from that which is before me as this Court, as indicated earlier, had directed that D1 was to file a formal application for assessment of damages vis a vis the Plaintiff’s Injunction and Ad Interim Injunction Order. [11] I thus agree with learned counsel for D1 that the application in Enclosure 143 itself is to enforce an undertaking given by the Plaintiff which complies with Middy Industries Sdn Bhd & Ors (supra) where it was held “[17] Based on the above principles as well the wordings of the undertaking in question (in the present case), we are of the view that the enforcement of the said understanding given by the respondent (the plaintiffs) in an ex parte interlocutory injunction is not automatic right of the respondent (the defendant) in the event the injunction is subsequently discharged. There must first be determination by the court that the undertaking ought to be enforced. There must be an order from the court as to damages for which the court may order damages summarily or direct an assessment thereof. Without such an order from the court, the undertaking cannot be enforced. The wordings of the undertaking itself clearly indicate that 'the court may make an order as to damages after the court has satisfied that the appellant shall have sustained the damages by reason of the ex parte injunction which the respondent ought to pay'. The enforcement of the undertaking is not S/N zw/l4fxnbEeKGkashPuhg automatic. The court may exercise its discretion and form an opinion that the appellants had sustained injury or damages as a result of the ex parte injunction”. [12] As to the other case of Lai Yoke Ngan & Anor V Chin Teck Kwee & Anor [1997] 2 MLJ 565 this concerned issues of a judgment in default (the subject matter of the first appeal) which was irregular for non-compliance with the RHC by failing to serve a statement of claim on the defendants, where on this ground alone, the entire judgment in default ought was to be set aside due to the procedural irregularity. [13] Finally, the case of Sky Blue Media Sdn Bhd v Goh Sin Teck [2022] MLJU 857 also relied on by learned counsel for the Plaintiff, was based on the plaintiff therein obtaining an inter parte injunction against the defendant in December 2018 and where the progress of the suit was hampered due to the various movement control orders brought about by the Covid-19 pandemic. Based on the facts, some three years later, both parties agreed to have the suit withdrawn with liberty to file afresh. Based on consent of the parties, the Court struck off the suit with cost but about a month after the suit was withdrawn, the defendant filed an application to enforce the undertaking in damages given by the plaintiff when the inter parte injunction was granted. In essence, the defendant was seeking to assess the damages he suffered for the period within which the injunction was in force which the Court therein dismissed. [14] Thus the afore said cases can be differentiated and will not be applicable herein with the matter before me as I had, at the sake of repetition, made an order directing that D1 was to file a formal S/N zw/l4fxnbEeKGkashPuhg application for assessment of damages vis a vis the Plaintiff’s Injunction and Ad Interim Injunction Order. Is the Undertaking enforceable [15] The Plaintiff had amongst others also argued that the Undertaking was not enforceable as it was only given in the context where the Injunction was wrongfully granted and that there was no finding that the Ex Parte Injunction and Ad Interim Injunction was wrongfully granted. [16] I hold from the authority of the Court of Appeal case of Goo Sing Kar v Dato' Lim Ah Chap & Ors [2013] 3 MLJ 374 that an undertaking is to compensate the other side for all losses or damages which the court is of the opinion was caused as a result of the injunction and I quote where the said Appellate Court had made reference to: “According to Halsbury's Laws of England, (4th Ed) Vol 24, at para 1072, it is the price which the person asking for an interlocutory injunction has to pay for it. Such an undertaking is an absolute undertaking. And that being the case, the appellant here will be liable for any damages which the first respondent may have sustained.” [17] Thus, I am satisfied that even if D1 did not apply to set aside the Plaintiff’s injunction to determine whether the Injunction was properly granted, the Undertaking is enforceable as the Plaintiff’s anti-suit injunction application in Enclosure 53 had been dismissed. [18] From this I hold that D1 has the right to apply to enforce the Undertaking. S/N zw/l4fxnbEeKGkashPuhg Whether D1 Suffered Any Losses Or Damages From The Ex Parte Injunction And Ad Interim Injunction [19] As to the Plaintiff’s contention that D1 did not suffer any losses or damages from the Ex Parte Injunction and Ad Interim Injunction, I am of the view that this is a point to be canvassed and decided at the assessment of damages stage. Decision [20] Accordingly, I am granting prayers (1) and for prayer (2) that the assessment of damages be done before the Timbalan Pendaftar. Dated: 4th day of August 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Allen Cheng Peng Han, Ng Wen Xing and Joel Low (Messrs Azman Davidson & Co.] COUNSEL FOR THE 1st DEFENDANT: Firoz Hussein, Choo Shi Jin and Woo J Enn [Messrs Firoz Julian] S/N zw/l4fxnbEeKGkashPuhg COUNSEL FOR THE 2nd DEFENDANT: Feliex Dorairaj and Lim Kong Soon [Messrs Dorairaj Low & Teh] S/N zw/l4fxnbEeKGkashPuhg