Venture Skl Sdn. Bhd. v Geonex (M) Sdn. Bhd. (CA-22NCvC-36-07/2018)

There were two interlocutory applications before this Court. The 1st application in Enclosure 187 was by the Defendant for the setting aside of the Plaintiff’s Notice of Application for Directions (Enclosure 183) and Notice of Appointment for Assessment of Damages (Enclosure 185). 08/01/2025 10:47:58 CA-22NCvC-36-07/2018 Kand. 246

The 2nd application in Enclosure 196 was by the Plaintiff for an abridgment of time to file the Notice of Application for Directions in enclosure 183 and the Notice of Appointment for Assessment of Damages in enclosure 185.

I had dismissed the Defendant’s application with no order to costs. I had allowed the Plaintiff’s application with costs to the Defendant.

The Defendant appealed against the dismissal of its application. The Defendant also appealed against the Court’s decision in allowing the Plaintiff’s extension of time application, but the appeal does not cover the Court’s order for the Plaintiff to pay costs to the Defendant.

This Grounds of Judgment deals with both appeals as any decision by this Court allowing the Plaintiff’s application would consequently have the effect of the Defendant’s application to be set aside in limine.

The case between the Plaintiff and the Defendant can be summarised as follows:

Vide an agreement dated 26.2.2016 the Defendant appointed the Plaintiff as the exclusive sub-contractor to mine at a specified area in Temerloh, Pahang. It was the Plaintiff’s case that the Defendant represented to the Plaintiff that the area had sufficient iron ore deposits which would allow the Plaintiff to conduct mining operation for about 13 years.

(ii) By a letter dated 29.9.2016 the Defendant instructed the Plaintiff to cease all mining operations at the area without giving any reasons. The Defendant also contended the agreement dated 26.2.2016 was void and unenforceable.

(iii) The Plaintiff maintained the agreement as valid and enforceable.

(iv) Around March 2018, the Defendant’s representatives dismantled the mining plant of the Plaintiff constructed at the mining site and instructed the Plaintiff to cease all mining activities.

The Plaintiff’s action was, inter alia, for the Court –

to issue an injunction to restrain the Defendant from dismantling and removing the Plaintiff’s mining plant;

to declare the 26.2.2016 agreement valid and enforceable and the termination by the Defendant as void and unforceable; and

to award damages.

(vi) The Defendant counterclaimed for damages for-

storage of the Plaintiff’s machineries and other goods;

the Plaintiff’s interference in the Defendant’s mining activities; and

the Plaintiff’s inducement for breach of contract. [7] After a full trial, on 26.2.2021 the High Court decided to dismiss the Plaintiff’s case and allowed the Defendant’s counterclaim. [8] The Plaintiff’s appeal was allowed by the Court of Appeal on 19.1.2023. The High Court’s decision of 26.02.2021 was reversed. The Court of Appeal also granted consequential Orders in respect of the award of damages and costs as follows: “(a) ....

Mahkamah Tinggi membuat taksiran bagi kos-kos berikut dibayar oleh Responden kepada Perayu:

Responden membayar Perayu gantirugi atas kilang “processing plant” yang telah dileraikan dan dikeluarkan oleh Responden sendiri, ejen-ejen atau pengkhidmat-pengkhidmatnya tanpa kebenaran dan keizinan Perayu;

(ii) Ganti Rugi Khas;

(iii) Ganti Rugi Am;

(iv) Ganti Rugi Ekonomi;

Faedah 5% setahun dari tarikh penamatan Perjanjian oleh Responden pada 29.9.2016;

Tiada perintah terhadap ganti rugi teladan dan punitif; dan

Kos sebanyak RM40,000.00 sebagai kos di sini dan di bawah dibayar oleh Responden kepada Perayu, tertakluk kepada fi alokatur.” [9] The Defendant’s Motion for Leave to appeal against the decision of the Court of Appeal was dismissed with costs by the Federal Court on 8.11.2023. [10] Following the decision of the Federal Court, the Plaintiff filed the Notice for Directions in Enclosure 183 on 27.11.2023. The sealed copy of this Notice was served on the Defendant on 29.11.2023. Case Management for this Notice was fixed before the Deputy Registrar on 3.1.2024 where after hearing both parties the Deputy Registrar directed the Plaintiff to file the Notice of Appointment before the subsequent date of Case Management on 17.1.2024. The Plaintiff filed the Notice of Appointment (enclosure 185) on 3.1.2024. At the Case Management for the Notice of Appointment on 17.1.2024 before the Deputy Registrar, counsels were asked by the Registrar whether any party would call the deponents of the affidavits for cross examination during the assessment proceeding. Both counsels requested for time and the Registrar fixed 31.1.2024 for counsels to revert. [11] On 29.1.2024 the Defendant filed its application in Enclosure 187 to set aside the Plaintiff’s Notice of Application for Directions (Enclosure 183) and Notice of Appointment for Assessment of Damages (Enclosure 185). [12] On 29.2.2024, in the exercise of caution, the Plaintiff filed Enclosure 196 for an abridgment of time to file the Notice of Application for Directions and the Notice of Appointment for Assessment of Damages. FINDING [13] O. 37 r.1 provides that “... 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 ...”. [14] Paragraph 37/1/3A of the White Book explained in detail the two school of thoughts on the mandatoriness to comply with the one month period set out in O. 37 r.1, and whether non-compliance with that period is fatal. The 1st view interpreted the word “shall” in that part of O.37 r.1 as mandatory and non-compliance is a fundamental breach and could not be saved (see : Tetuan Sri Ling & Associates v Lian Meng Wah [2015] 3 AMR 254; [2015] 3 CLJ 63, CA, Mat Jim bin Wahab v Naga Steel Equipment Sdn Bhd & Anor [2018] 3 AMR 385; [2018] 7 CLJ 105, HC). The 2nd view suggests that requirement in O.37 r.1 is not mandatory and non-compliance can be cured under O. 1A and O. 2 r.1 (see: Vellasamy Ponnusamy & Ors v Gurbachan Singh Bagawan Singh & Anor [2020] AMEJ 0552; [2020] 7 CLJ 512, CA, DJ Auto Components Manufacturing Sdn Bhd v FBK Systems Sdn Bhd [2019] 6 AMR 122; [2019] MLJU 968, HC). [15] It is trite now that the provisions of the Rules, including O. 37 r.1, must be read within the entire overriding objective of the 2012 Rules – which requires court to deal with cases justly. The Court has to give effect to the overriding objective in all stages of proceedings, inclusive of decision-making process and when interpreting the rules. When courts decline to hear cases on merits but are inclined to dismiss cases on technicalities, then the primary purpose for the Courts' existence to dispense justice is defeated: Jagdis Singh Banta Singh v Outlet Rank

(M) Sdn Bhd [2013] 3 CLJ 46, CA, Re VK Sathavisam, Ex p Phileoallied Bank (M) Bhd [2004] 5 CLJ 549, CA, Petra Perdana Bhd v Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra & Ors [2017] 3 AMR 849; [2017] MLJU 410, HC. [16] I am duty bound to assess the damages as ordered by the Court of Appeal and would not dismiss the Plaintiff’s applications merely on technicalities. Thus, I am inclined to follow the decision of the Court of Appeal in Vellasamy Ponnusamy and a string of other decisions of my learned brother and sister judges of the High Court that decided that the requirement of one month in O. 37 r.1 is not mandatory despite the word “shall”. In Vellasamy Ponnusamy the Court of Appeal held: “[12] Order 37 of RC 2012 must be read with O. 34. In addition, the phrase 'shall' is not mandatory in nature as it also allows the opposing party to file directions as well as the court in its own motion to set the matter for case management if the application is not made within a month. In addition, a six month period is given to the opposing party to make such an application under O. 37 r. 1(7) keeping the subject matter of assessment open until some action is taken by parties or Registrar. It will be travesty of justice to allow the defendants to object on the ground of non-compliance when they are given the right to remedy the breach. Thus, reading O. 37 r. 1(1) of RC 2012 in isolation will lead to miscarriage of justice. We note that in the case of Petra Perdana Bhd v. Tengku Dato' Ibrahim [2017] CLJU 422; [2017] 1 LNS 422; [2017] 3 AMR 849, the learned Judicial Commissioner had dealt with O. quite extensively to rule it is not mandatory. [13] The overriding objective of RC 2012 requires court to condone non-compliance. ... [17] .... It must also be noted that a different coram of the Court of Appeal had taken the view that O. 34 needs to be considered when dealing with O. 35, O. 37 and other provisions of the Rules. (See Lim Tze Sian v. Coverright Surface Malaysia Sdn Bhd [2017] 5 CLJ 150). In essence, O. 34 is a cardinal provision for the court to ensure that all proceedings are proceeded justly, expeditiously as well as economically. Thus, the room for depriving a substantive right is narrowed down in contrast to the old Rules of Court.” [17] In any event, even if this Court takes the strict interpretation and regards the one month period for the Plaintiff to file the Notice for Directions as mandatory, did the Plaintiff breached the one month period? I find the answer to be in the negative. [18] As shown earlier, the final decision of the Federal Court in dismissing the Defendant’s Motion for Leave to appeal against the decision of the Court of Appeal was on 8.11.2023. The Plaintiff filed the Notice for Directions in Enclosure 183 on 27.11.2023 – 21 days after the Federal Court’s decision. It was well within the one month timeline. The Defendant argued that as O. 37 r.1 provides that “... 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 ...”, the one month period is from the date of the decision of the High Court and not the Federal Court. If one were to stretch that date, the furthest it could go is on the date of the decision of the Court of Appeal on 19.1.2023, as the Federal Court merely confirmed the Court of Appeal’s decision. As such, the Notice for Directions should have been filed the latest by 18.2.2023. Therefore, there was a delay of close to 9 months on the part of the Plaintiff. [19] Granted, the notes of proceedings showed that when counsels for both parties appeared before the Registrar for Case Management on various dates, the Defendant never raised any objection on the Plaintiff’s Notice for Directions and Notice of Appointment. The Plaintiff was notified on the Defendant’s objection only when the Defendant filed its application to set aside the Notices in enclosure 187 on 29.1.2024. Exactly a month after that on 29.2.2024, in the exercise of caution, the Plaintiff filed enclosure 196 for an abridgment of time to file the said Notices. [20] O. 37 does not provide that in the event that the Plaintiff is found to have not complied with the one month period requirement, the Plaintiff is deprived to execute its right to have the damages as adjudged in its favour to be assessed. Instead, O. 37 r.1(3) provides that the court may, on the Defendant’s application, proceed to assess the damages or make such orders it deems appropriate. This suggests that any non-compliance with O. 37 cannot remove substantive rights of the Plaintiff to have the damages assessed. To suggest otherwise and to deprive the Plaintiff of its right to proceed with the assessment of damages in the manner as specifically laid down by the Court of Appeal, would have the effect of this Court revoking the orders of the Court of Appeal, an absolute incongruity and absurdity on the part of this Court. [21] Having considered the matters as enumerated in the preceding paragraphs, this Court allowed the Plaintiff’s application for an extension of time to file the Notices. [22] At the same time, this Court applied squarely the decision of the Court of Appeal in TWT Hardware Sdn Bhd & Anor v RHB Bank (Civil Appeal No. B-03 (IM)-13-02/17) where the court allowed the plaintiff’s appeal against the High Court’s decision (see TWT Hardware Sdn Bhd & Anor v RHB Bank [2017] MLJU 598) in disallowing an extension of time to file the Notices but imposed costs against the plaintiff for the delay and inconveniences caused to the Defendant by such delay. [23] Enclosure 196 was allowed with costs in favour of the Defendant. Consequentially, the Defendant’s Enclosure 187 was dismissed with no order as to costs. Dated : 30 December 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya PARTIES : Solicitors for the Plaintiff: Dato’ RK Nathan together with En. Vinod Kamalanathan and En. Muhammad Azim Akif bin Saiful Bahri Tetuan Vinod Kamalanathan & Associates Suite 501, 5th Floor, Loke Yew Building 4 Jalan Mahkamah Persekutuan 50500 Kuala Lumpur Ref. : VKA/L/2029/BAYUMINING/2016/es Email : vinodk.nathan@gmail.com Solicitor for the Defendant: En. Kanesrau Appalanaidu Tetuan Seah Balan Ravi & Co Unit A, 3rd Floor, Wisma 1 Alliance No. 1 Lorong Kasawari 4B Taman Eng Ann, 41150 Klang, Selangor Ref. : SBR/28522/22-04/SR(KS) Email : sbrlitigation@gmail.com