Wong Man Fai Frankie v 1. ) Tseng Freya Hemmon Fan Yea (WA-24NCC-321-07/2024)

TSENG FREYA HEMMON FAN YEA (Passport No.: 525916769)

FOREBASE PROPERTY SDN BHD (Company No.: 201601003121 (1174047-H)) ... DEFENDANTS S/N oDtlr5RviUy5KUkKlgOh7A GROUNDS OF JUDGMENT INTRODUCTION [1] This matter concerns applications by the Plaintiff Wong Man Fai Frankie (“Frankie”) to vary injunction orders that have severely restricted his ability to operate the Second Defendant Forebase Property Sdn Bhd (“the Company”), a property development company established for the Hemmon House Residensi project in Kuala Lumpur (“the Project”). The central dispute arises from a deadlock between Frankie and the First Defendant Tseng Freya Hemmon Fan Yea (“Freya”), who are equal shareholders and directors of the Company. Following the successful issuance of the Certificate of Completion and Compliance (“CCC”) on 30.10.2024, Frankie seeks court permission to execute essential business operations without requiring Freya's consent, which Frankie claims she has systematically withheld, causing significant financial losses through accumulated Liquidated Ascertained Damages (“LAD”) and operational paralysis. The applications raise fundamental questions about corporate governance in situations of directorial deadlock and the circumstances under which court intervention is justified to protect a company's interests when normal decision-making mechanisms have broken down. S/N oDtlr5RviUy5KUkKlgOh7A BACKGROUND FACTS [2] Frankie is a Hong Kong SAR citizen. Freya is a British citizen residing in Hong Kong. The Company was incorporated in 2016. Frankie and Freya are each 50% shareholders and directors of The Company. [3] The Company was established for the Project at No. 1, Jalan Inai, Imbi, 55100 Kuala Lumpur, opposite the Ritz-Carlton Hotel. The Project involves constructing a 40- storey building comprising 90 dual-key condominium units, launched in 2017 as the Company's only business activity. [4] The Project has experienced significant delays. Originally scheduled for completion in April 2023, then revised to September 2023, it remains incomplete and has been classified as “Projek Sakit” by the Ministry of Housing and Local Government (“KPKT”). As of the relevant dates, completion status is at 97.50%. [5] The Company appointed Hubei Dijian Construction (Malaysia) Sdn Bhd (“Hubei”) as main contractor. Disputes arose, and the main contractor served notices of arbitration dated 29.5.2024 and adjudication dated 24.5.2024 against the Company, then locked up the Project site. On 5.7.2024, Frankie unilaterally terminated the main contractor and arranged for locks to be broken. S/N oDtlr5RviUy5KUkKlgOh7A [6] Earlier, on 5.4.2024, a judgment creditor of the Company known as Industrial Property Management Sdn Bhd (“IPM”) presented a winding up petition no. WA-28NCC- 320-04/2024 ("the Winding-Up Petition") against the Company for a judgment sum of RM1,018,511.31. [7] On 16.7.2024, Frankie filed the originating summons under Sections 314 and 346 of the Companies Act 2016 and Order 92 Rule 4 of the Rules of Court 2012, seeking: a) permission to call an Extraordinary General Meeting with one week notice; b) that Frankie's sole attendance constitute sufficient quorum; c) alternatively, a declaration that Freya conducted the Company's affairs oppressively; and d) alternatively, that Frankie be authorised to manage the Company's affairs. [8] In response, Freya filed a counterclaim in her affidavit in reply alleging oppression by Frankie. Her counterclaim alleged that: a) despite being a 50% shareholder and director, Frankie has conducted the operations of the Company unilaterally without her consent or S/N oDtlr5RviUy5KUkKlgOh7A approval and has proceeded to appoint, engage and terminate contractors and suppliers without her consent; b) Frankie has made various false or unlawful representations to various parties including financial institutions without her knowledge; c) Frankie, being the sole approver of monies in the Company's HDA, has wrongly withdrawn and utilised monies from the said account; and d) Frankie's conduct on behalf of the Company post the presentation of the Winding-Up Petition is unlawful and illegal. [9] On 26.8.2024, Freya filed an ex parte application for injunction with certificate of urgency. The court granted an Ad Interim Injunction Order (Enclosure 11) restraining Frankie from: a) holding himself out as the Chief Executive Officer (“CEO”) and/or a person authorised and/or a person having authority to act for the Company; b) acting for and on behalf of the Company without Freya's consent and/or the Board of Directors; S/N oDtlr5RviUy5KUkKlgOh7A c) carrying out any business under the name of or through the Company and/or causing the Company from dealing with any party without Freya's consent and/or approval; and d) operating, utilising, releasing and/or withdrawing monies from the Company's bank accounts without Freya's prior consent and/or approval until the full and final disposal of the action. [10] On 6.9.2024, during the inter partes hearing, Frankie urgently sought court permission to complete the project by obtaining the CCC and to appoint legal representation for defending against winding up petition and arbitration proceedings. Due to time constraints and urgent legal deadlines, the court adjourned to 9.9.2024. [11] On 9.9.2024, the court issued an amended ad interim injunction order, titled “Order Ad Interim Injunction” (Enclosure 30) making two key modifications: a) The court amended the original ex parte order (Enclosure 11) by changing its title from “ad interim” to “ex parte” and limiting its duration from “until full and final disposal of this action” to “until the full and final disposal of Enclosure 6”; and S/N oDtlr5RviUy5KUkKlgOh7A b) The court granted a specific variation allowing Frankie to deal directly with regulatory authorities JKKP (Department of Occupational Safety and Health) and DBKL (Kuala Lumpur City Hall) for inspections and certifications of the Hemmon House Residensi project, with the condition that he must provide all necessary documents regarding these interactions to Freya. [12] This variation was granted due to urgent project completion requirements, including obtaining the CCC, while maintaining Freya's oversight through the document disclosure requirement. [13] On 28.10.2024, Frankie filed Enclosure 59 seeking to vary the 9.9.2024 order, requesting permission for specific tasks including: dealing with authorities for Form B submission to National Property Information Centre (“NAPIC”) and KPKT reports; replacing banker's cheques for Strata Title Application; handling lift matters; issuing valuation certification; signing Tenaga Nasional Berhad (“TNB”) documents; and appointing solicitors for arbitration. [14] Also, on 28.10.2024, Atas Arm Sdn Bhd, a contractor company involved in interior design and furnishing works for the Project, filed Originating Summons No. WA-28JM- 30-10/2024 (“the Judicial Management Application”) S/N oDtlr5RviUy5KUkKlgOh7A seeking to place the Company and Prestige Quest Sdn Bhd under judicial management. [15] On 17.12.2024, Frankie filed Enclosure 78 seeking additional permissions beyond Enclosure 59, including: submitting vacant possession applications to KPKT; dealing with RHB Bank loan disbursement matters; appointing solicitors for appeal proceedings; submitting Housing Development Account (“HDA”) claims; arranging funds settlement; appointing auditors; and submitting annual audited financial reports. [16] Both applications were scheduled for 6.1.2025. On 19.12.2024, Freya's solicitors requested postponement, which Frankie opposed. The court maintained the hearing date. [17] On 6.1.2025, Freya's solicitors informed the court they needed time to respond to Enclosures 85 and 88 filed by Frankie on 24.12.2024. Enclosure 85 was the plaintiff's Notice of Application to expunge the first defendant's affidavits at Enclosures 5, 8, 29 and 42, while Enclosure 88 was the plaintiff's Notice of Application to set aside the Injunction Orders. These involved serious allegations that Freya fraudulently affirmed affidavits in August, September, and October 2024 when Immigration Department records showed she was not in Malaysia. The court scheduled all applications for hearing on 5.2.2025. S/N oDtlr5RviUy5KUkKlgOh7A [18] On 5.2.2025, Frankie's counsel withdrew Enclosures 85 and 88 after Freya filed an affidavit resolving the immigration dispute, revealing she had used her Hong Kong passport to enter Malaysia but affirmed affidavits using her British passport. The court then adjourned the hearing of Enclosures 59 and 78 to 6.2.2025. [19] On 6.2.2025, the court then adjourned the hearing of Enclosures 59 and 78 to 17.3.2025. The court also recorded a consent order (Enclosure 129) resolving key operational disputes. Key provisions included: approval for submitting vacant possession documents to the Ministry; permission to appoint solicitors for appeal proceedings; and most significantly, requiring all withdrawals from the Company's 14 bank accounts to be made only by cheques jointly signed by both Frankie and Freya. [20] Following the 6.2.2025 variation, Frankie, on 18.2.205, filed Enclosure 130 seeking permission to arrange delivery of vacant possession to purchasers on the ground that KPKT has set a 30.5.2025 deadline for vacant possession delivery and further delays would cause irreparable damage with continuing liquidated damages. Enclosure 130 was also fixed for hearing on 17.3.2025. S/N oDtlr5RviUy5KUkKlgOh7A ENCLOSURES 59 AND 78 THE APPLICATION IN ENCLOSURE 59 [21] Enclosure 59 is a Notice of Application filed by Frankie on 28.10.2024 to vary the amended ad interim injunction order dated 9.9.2024 (Enclosure 30) (as varied on 25.10.2024). [22] Frankie specifically requested permission to execute the following six matters on behalf of the Company without requiring consent from Freya as reflected in Annexure A to Enclosure 59 - “Proposed Re-Amended Order Ad Interim Injunction”. The additional orders sought by Frankie are: “7. The Plaintiff is permitted to execute the following matters on behalf of the 2nd Defendant:-

7.1. To deal with the relevant authorities, including but not limited to submitting the necessary forms including the submissions of Form B to NAPIC and the

7.2. To replace the banker’s cheques issued to the Pentadbir Tanah Wilayah Persekutuan for the purposes of the Strata

7.3. To replace the banker's cheques issued to the Pentadbir Tanah Wilayah Persekutuan for the purposes of the Strata Title Application for the Project; S/N oDtlr5RviUy5KUkKlgOh7A

7.4. To issue the Valuation Certification to Aino Furnishing Sdn Bhd for its works done;

7.5. To sign the Tenaga National Berhad (TNB) Leasing documents together with the the Project;

7.6. To appoint solicitors to represent the 2nd Defendant in relation to the Arbitration proceedings at the Asian International Arbitration Centre (AIAC) initiated by Hubei Dijian Construction (Malaysia) Sdn Bhd against the 2nd Defendant” [23] The grounds supporting this application included: a) Change of circumstances - There were changes in circumstances following the issuance of the injunction order obtained by Freya against Frankie, warranting variation in the best interest of the Company. b) Undue hardship - The Company's operations and Frankie suffered undue hardship, particularly because Freya had delayed the progress of issuing the CCC and completion of the Project. c) Refusal to consent - Freya's refusal to consent to matters relating to the operation of the Company prevented the Company from functioning properly, with Freya allegedly S/N oDtlr5RviUy5KUkKlgOh7A abusing the injunction order by requiring 'her consent' in all Company-related matters. d) Balance of convenience - The balance of convenience favored varying the amended Order Ad Interim Injunction. [24] The application was motivated by Frankie's claims that Freya had systematically failed to consent to essential business operations despite repeated requests, causing significant delays to the Project's progress and financial losses to the Company, including missed submission deadlines and inability to proceed with critical project completion activities. THE APPLICATION IN ENCLOSURE 78 [25] Enclosure 78 is a Notice of Application filed by Frankie on 17.12.2024 to further vary the amended ad interim injunction order dated 9.9.2024 (Enclosure 30) (as varied on 25.10.2024). [26] Frankie prays for specifically requested permission to execute seven matters on behalf of the Company without requiring consent from Freya as reflected in Annexure A to Enclosure 78 - “Proposed Re-Amended Order Ad Interim Injunction”. The additional orders (in addition to those already prayed for in Enclosure 78) originally sought by Frankie are: S/N oDtlr5RviUy5KUkKlgOh7A “7. The Plaintiff is permitted to execute the following matters on behalf of the 2nd Defendant:- …………….

7.7. To submit the

7.8. To deal with all matters as requested by RHB Bank Berhad and any other related parties in relation to the loan disbursement, including but not limited to issuing the Letter in relation to the Differential Sum Payment Confirmation to Messrs Donny & Ong and the Master Letter of Undertaking to RHB Bank Berhad;

7.9. To appoint solicitors to represent the 2nd Defendant in relation to the Appeal No. W-02(NCvC)(W)-164-01/2024 initiated by Industrial Property Management Sdn Bhd against the 2nd Defendant;

7.11. Upon the funds from claims made on the 2nd Defendant’s Housing Development Account and loan disbursements from the banks to the 2nd Defendant, to arrange for the 2nd Defendant to utilize the said funds so as to settle all outstanding debts owed by the 2nd Defendant to any third parties and/or authorities.

7.12. To arrange for the auditor to conduct the Audit Exercise for the 2nd Defendant for the financial year ended on 31.3.2024;

7.13. To deal with all matters relating to the submission of the Laporan Kewangan Tahunan Beraudit (7E) to the Ministry of Housing and Local Government (KPKT).” S/N oDtlr5RviUy5KUkKlgOh7A [27] Enclosure 78 seeks additional variations beyond those requested in Enclosure 59. The relationship is explained as follows: a) In Enclosure 59 (filed 28.10.2024), Frankie sought six specific variations including dealing with authorities, lifts matters, TNB documents, valuation certification, and arbitration solicitors. b) In Enclosure 78 (filed 17.12.2024), Frankie sought seven additional and different variations focused on vacant possession delivery, banking, appeals, auditing, and debt settlement c) The critical development that necessitated Enclosure 78 was that the CCC was issued to the Company on 30.10.2024 (just 2 days after Enclosure 59 was filed). This achievement created new urgent requirements for vacant possession delivery. d) As stated in the grounds: “after the filing of Enclosure 59, there are further events that occurred that caused [Frankie] to have no choice but to come before this Honourable Court once again to apply for the Amended Order Ad Interim Injunction to be further varied.” S/N oDtlr5RviUy5KUkKlgOh7A [28] The grounds supporting Enclosure 78 included: a) Frankie had filed Enclosure 59 on 28.10.2024 to vary the amended ad interim injunction order. b) After filing Enclosure 59, further events occurred that caused Frankie to have no choice but to apply for additional variations. c) There was a change of circumstances upon the issuance of the injunction order obtained by Freya against Frankie, warranting variation in the best interest of the Company. d) The Company's operations and Frankie suffered undue hardship, including Freya derailing the Company's operations and hindering the delivery of vacant possession of the Project's units to purchasers, resulting in additional LAD being incurred monthly (approximately RM387,678.36 per month). e) Freya's refusal to consent to matters relating to the operation of the Company prevented proper functioning, with Freya allegedly abusing the injunction order by requiring 'her consent' in all Company-related matters. S/N oDtlr5RviUy5KUkKlgOh7A f) The balance of convenience favored varying the amended ad interim injunction order. [29] The application was motivated by the urgent need to deliver vacant possession to purchasers following the CCC issuance, with Frankie claiming that delays caused by Freya's refusal to consent were causing significant monthly financial losses and risked the Project becoming abandoned. [30] After a consent order was recorded on 6.2.2025 (Enclosure 129), which resolved the key operational disputes, the only orders remaining which are sought are those in paragraphs 7.1, 7.4, 7.6, 7.8, 7.9, 7.10, 7.11,

7.12 and 7.13 of the “Proposed Re-Amended Order Ad Interim Injunction” in Annexure A to Enclosure 78. RESPECTIVE PARTIES' SUBMISSIONS Frankie’s submissions [31] Frankie submits that the amended ad interim injunction order obtained by Freya has severely restricted his ability to operate the Company, preventing him from acting as CEO, conducting business, or operating bank accounts without Freya's consent. Frankie contends that this injunction requires variation to allow him to perform essential business functions that Freya has consistently S/N oDtlr5RviUy5KUkKlgOh7A refused to consent to, causing significant project delays and financial losses. [32] Frankie argues that he needs court permission to submit progress reports (Laporan Kemajuan Project and Laporan Kemajuan Kewangan) to KPKT without requiring Freya's approval. Frankie maintains that he must be allowed to handle critical matters concerning passenger lifts and fire department lifts for the Project to ensure regulatory compliance. Frankie asserts that the Company requires him to issue valuation certification to contractors like Aino Furnishing Sdn Bhd (“Aino Furnishing”) for completed work and to appoint solicitors for arbitration proceedings initiated by the main contractor, Hubei. [33] Frankie maintains that additional circumstances have arisen since filing Enclosure 59, necessitating further variations to the injunction order with a certificate of urgency. Frankie claims that seven additional critical matters require court permission to proceed without Freya's consent, all aimed at protecting the Company's interests and ensuring delivery of vacant possession to purchasers. [34] Frankie urges that he must be permitted to submit the Permohonan Penyerahan Milikan Kosong Tanpa Hakmilik Strata (Application for Delivery of Vacant Possession Without Strata Title) to KPKT. Frankie insists that he needs authority to handle all matters requested by S/N oDtlr5RviUy5KUkKlgOh7A RHB Bank Berhad for loan disbursement, including issuing confirmation letters and undertakings. Frankie pleads that the Company requires him to appoint solicitors for Appeal No. W-02(NCvC)(W)-164-01/2024 (“Appeal 164”), submit claims to the HDA, and arrange auditor appointments for the financial year ended 31.3.2024. [35] Frankie emphasises that both applications demonstrate his commitment to acting in the Company's best interests while Freya continues to abuse the injunction orders by withholding consent for crucial business operations. Frankie concludes that the court's eventual variation of the injunction through mutual consent on 6.2.2025, validates his position that these variations were necessary for the Company's continued operations. Freya’s submissions [36] Freya challenges Frankie's applications to vary the injunction order by raising serious concerns about his unilateral actions despite the existing injunction restrictions. [37] Freya alleges detailed concerns regarding the architect appointment for the CCC. She contends that Frankie unilaterally appointed architect Rashid Kader without her knowledge or consent, and when she questioned this appointment, Frankie refused to provide clear answers. S/N oDtlr5RviUy5KUkKlgOh7A Her representatives conducted investigations on 20.12.2024, visiting the architect's office address listed on documents at No. 1-5B, Jalan PJU 1/3C, Sunwaymas Commercial Centre, 47301 Petaling Jaya, only to discover that current tenants had occupied the premises for approximately two years. [38] Through Exhibit “FT-81”, Freya provides evidence showing that after visiting four different locations, her team eventually found the architect at a residential address at No. 84, Lot 3239, Jalan Seri Penchala Kampung Sungai Penchala, 60000 Kuala Lumpur. She alleges that the architect admitted having no first-hand knowledge of the project, raising serious questions about the validity of the CCC that forms the basis of Frankie's applications. [39] Freya argues with detailed financial analysis demonstrating that the Company faces insolvency despite the CCC issuance. Her calculations show that expected progress claims post-CCC amount to RM10,600,000, but after deducting rebates of RM5,600,000, overpayments of RM2,400,000, and LAD of RM4,800,000, the Company would face a shortfall of RM2,200,000. This financial analysis directly contradicts Frankie's claims that the CCC would resolve the Company's financial difficulties. S/N oDtlr5RviUy5KUkKlgOh7A [40] Freya chronicles evidence regarding the JL Facilities incident, claiming she arranged for building management company JL Facilities Sdn Bhd to visit the project site on 24.12.2024 to assess the building's condition and management requirements. However, she alleges that Frankie turned down her request on the eve of the planned visit, demonstrating his continued obstruction of proper due diligence processes. She provides email evidence of this incident through Exhibit “FT-83”. [41] Freya asserts her position that Frankie's primary motivation is obtaining his RM5 million remuneration upon project completion, rather than addressing the Company's insolvency issues. She argues that despite the Company's dire financial position, Frankie continues to focus on personal financial gain rather than proper corporate governance and stakeholder protection. [42] In her subsequent filing, Freya raises additional allegations in her Affidavit in Reply (3) filed as Enclosure 95 on 3.1.2025, presenting extensive accounting irregularities. She alleges that Frankie created fictitious accounts showing her as a creditor to the Company for RM2,789,549.77 when the money was actually owed to Prestige Quest Sdn Bhd, while simultaneously creating an account in Prestige Quest Sdn Bhd's books showing her as a debtor for RM2,651,781.89 as of 31.12.2024. S/N oDtlr5RviUy5KUkKlgOh7A [43] Freya documents evidence through multiple exhibits (FT- 94 through FT-105) various financial discrepancies, including questionable progress billing recognition adjustments over five years, unpaid sales commissions of approximately RM4.2 million accrued in 2020 and 2021, and mysterious disappearance of preference shares investments totaling RM3.3 million with Ant Capital Sdn Bhd. She also questions rental payments of RM140,000 to Butler KL Sdn Bhd (wholly owned by Frankie) without proper rental agreements and undisclosed judgment sums against the Company. ISSUES FOR DETERMINATION [44] The central issue for determination is whether there is a material change of circumstances that warrants a variation of the amended ad interim injunction order to allow Frankie to execute certain matters on behalf of the Company without requiring Freya's consent. [45] Specifically, I must determine whether Frankie should be permitted to: a) Deal with relevant authorities, including submitting the Laporan Kemajuan Kewangan to KPKT; b) Issue Valuation Certification to Aino Furnishing; S/N oDtlr5RviUy5KUkKlgOh7A c) Appoint solicitors to represent the Company in Arbitration proceedings; d) Deal with matters requested by RHB Bank Berhad relating to loan disbursement; e) Appoint solicitors for Appeal 164; f) Submit claims to the Company's HDA; g) Arrange for the Company to utilise funds to settle outstanding debts; h) Arrange for auditors to conduct the Audit Exercise for the financial year ended 31.3.2024; and i) Deal with matters relating to the submission of the Laporan Kewangan Tahunan Beraudit (7E) to KPKT. [46] In determining these issues, I must consider: a) Whether there has been a material change of circumstances since the granting of the injunction orders; S/N oDtlr5RviUy5KUkKlgOh7A b) Whether the injunction orders have caused undue hardship to the Company's operations and to Frankie; and c) Where the balance of convenience lies. THE LAW ON VARIATION OF INJUNCTION ORDERS [47] The legal principles governing the variation of injunction orders are well-established. Order 42 Rule 13 of the Rules of Court 2012 provides that this court has the power to vary an order: “Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.” [48] Additionally, Order 92 Rule 4 of the Rules of Court 2012 confirms this court's inherent jurisdiction to make an order if necessary to prevent injustice: “For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” S/N oDtlr5RviUy5KUkKlgOh7A [49] The Supreme Court in Government of Malaysia v Lim Kit Siang; United Engineers (M) Berhad v Lim Kit Siang [1988] 2 MLJ 12 clarified that an interlocutory injunction may be varied if the aggrieved party can prove: a) A change of circumstances or new facts having come to light after the granting of the injunction; and/or b) Suppression of material facts when applying for the interlocutory injunction. [50] More recently, in WRP Asia Pacific Sdn Bhd & Anor v Tael Tijari Partners Ltd & Ors [2019] MLJU 1244 (HC), Ong Chee Kwan JC (as His Lordship then was) held that “this Court has the powers to vary and or set aside the Injunction Orders in the event there is a change of circumstances justifying the making of such an order.” His Lordship quoted from N.R Burns' “INJUNCTIONS: A Practical Handbook” that interlocutory injunctions may be dissolved or varied at any time “when changed circumstances made the relief as granted inappropriate, or when the original order is found to have been based upon a fundamental mistake.” [51] Furthermore, in The Store (Terengganu) Sdn Bhd v Abi Construction Sdn Bhd & Anor [2013] MLJU 1650 (HC), the court held that an order for injunction may be discharged, varied, or set aside if the court is satisfied S/N oDtlr5RviUy5KUkKlgOh7A that there is a change of circumstances, or the order has caused undue hardship to that party. [52] With these legal principles in mind, I now turn to consider the material change of circumstances and the undue hardship alleged by Frankie. ANALYSIS AND FINDINGS Material Change of Circumstances Issuance of the CCC and Project Completion [53] The most significant change in circumstances since the granting of the injunction orders is the successful issuance of the CCC on 30.10.2024. This was made possible by this court's order on 9.9.2024 allowing Frankie to deal with JKKP and DBKL regarding inspections and certifications for the Project. [54] The issuance of the CCC marks a critical milestone in the Project's development, signifying that the building is fit for occupation. Importantly, it triggers several necessary subsequent steps, including: a) The delivery of vacant possession to purchasers; b) The release of funds from the HDA; S/N oDtlr5RviUy5KUkKlgOh7A c) The disbursement of loans from financial institutions; and d) The settlement of outstanding debts and liabilities. [55] Freya has challenged the validity of the CCC, alleging discrepancies in the architect's signatures and questioning the architect's appointment. However, I find that there is insufficient evidence to cast doubt on the CCC's validity. The architect has issued a letter confirming that “By compliance with the above-mentioned conditions, I certified that the building is well constructed, fit for occupancy, and can be legally operated, then CCC and Borang F was issued. I further confirm that the issuance of CCC and Borang F is strictly in according to authority guidelines and the rules of Board of Architect Malaysia” (Exhibit “FWMF-106” in Enclosure 112). [56] Moreover, KPKT has approved the delivery of vacant possession. This official approval further validates the Project's completion status and readiness for occupation. The regulatory authorities responsible for ensuring building safety and compliance have therefore determined that the Project meets the necessary standards. S/N oDtlr5RviUy5KUkKlgOh7A Financial Implications and LAD Accrual [57] A second material change of circumstances is the continued accrual of LAD following the CCC issuance. According to Frankie's calculations, the Company is incurring LAD of approximately RM387,678.36 per month. From 30.10.2024 (the date of CCC issuance) until 31.3.2025, the estimated LAD liability amounts to RM1,615,972.51. [58] The accumulation of such significant LAD is a material change that directly impacts the Company's financial position. Notably, this accumulation is continuing despite the Project being certified as complete and ready for occupation. This represents an unnecessary financial burden on the Company that could be avoided by proceeding with the delivery of vacant possession. [59] While the parties dispute the exact calculation of LAD (with Freya's accountant estimating a higher figure of RM5.1 million), they agree that substantial LAD is accruing. The disagreement on the precise amount does not negate the material change represented by the ongoing financial burden of LAD following the CCC issuance. S/N oDtlr5RviUy5KUkKlgOh7A Pending Appeal and Legal Proceedings [60] Another material change is the development regarding Appeal 164 filed by IPM against part of the High Court's decision dated 27.12.2023. This appeal challenges the rejection of IPM's claim for general damages and loss of rental amounting to RM3,300,000.00, with the Company named as a respondent. [61] The Company's previous solicitors, Messrs Magnus & Han, filed a Notice of Motion to withdraw, stating that Freya opposed their appointment. This has left the Company without legal representation in the appeal, which was originally scheduled for hearing on 18.3.2025 but is now subject to the moratorium arising from the Judicial Management Application. [62] The appeal which may potentially recommence represents a material change that requires urgent attention. Without proper legal representation, the Company risks an adverse judgment, potentially increasing its liabilities by RM3,300,000.00 plus interest. Failure to Make Statutory Submissions [63] The failure to submit the Laporan Kewangan Tahunan Beraudit (7E) to KPKT by its due date in October 2024 has resulted in a fine of RM10,000 being imposed on the Company. Similarly, the Company has been unable to S/N oDtlr5RviUy5KUkKlgOh7A prepare the Audited Report for the financial year ended 31.3.2024 due to Freya's alleged failure to agree to the audit exercise. [64] These failures represent a material change as they expose the Company to regulatory penalties and potential breaches of statutory obligations under the Companies Act 2016. Section 259 of the Companies Act 2016 provides that failure to lodge financial statements with the Registrar may result in fines of up to RM5,000.00. Loan Disbursement Matters [65] The Company's ability to access financing following the CCC issuance is another material change. According to Frankie, RHB Bank Berhad requires certain documents, including the Letter for Differential Sum Payment Confirmation to Messrs Donny & Ong and the Master Letter of Undertaking, to facilitate loan disbursement. [66] Despite Freya's solicitors issuing a letter on 10.10.2024 indicating consent for Frankie to arrange the necessary documents for loan drawdown (Exhibit “FWMF-89” in Enclosure 79), she has allegedly withheld her consent for specific documents required by the bank. [67] The Company's ability to access financing is crucial for its continued operation and the settlement of its debts. The S/N oDtlr5RviUy5KUkKlgOh7A delay in this process represents a material change affecting the Company's financial position. Undue Hardship to the Company and Frankie [68] The second ground for varying an injunction order is if the order has caused undue hardship to the party against whom it was granted. I find that the injunction orders have indeed caused undue hardship to both the Company and Frankie. Financial Losses to the Company [69] The most obvious hardship is the financial loss to the Company. As detailed in Frankie's Exhibit “FWMF-108” in Enclosure 118, the Company has suffered estimated losses of approximately RM5,575,388.40 incurred on the accrued interest on outstanding liabilities – including LAD to purchasers, interest to loan providers, contractors/suppliers, additional costs, and judgment interest – since the injunction orders were obtained on 26.8.2024. These losses still do not include: a) Regulatory fines for non-submission of required reports; b) Legal costs associated with multiple proceedings; and S/N oDtlr5RviUy5KUkKlgOh7A c) Opportunity costs from delayed loan disbursements. [70] These financial losses represent a significant hardship for the Company, particularly as it is already facing financial challenges with debts that both parties acknowledge are substantial (though they disagree on the exact amount). Operational Paralysis [71] The injunction orders have effectively paralysed the Company's operations by requiring Freya's consent for all decisions. This has resulted in: a) Delays in statutory submissions; b) Inability to address matters relating to the Passenger Lifts and Bomba Lifts; c) Delays in issuing certifications to contractors and suppliers; and d) Inability to proceed with the delivery of vacant possession. [72] This operational paralysis represents a severe hardship as it prevents the Company from fulfilling its obligations to purchasers, contractors, and statutory authorities. S/N oDtlr5RviUy5KUkKlgOh7A Frustration of Frankie's Duties as Director [73] The injunction orders have also caused hardship to Frankie by preventing him from effectively performing his duties as a director. While directors typically act collectively, the evidence suggests that Frankie has been primarily responsible for the day-to-day operations of the Company since its inception. [74] By restraining Frankie from making necessary operational decisions without Freya's consent, and with Freya allegedly withholding or delaying her consent, the injunction orders have frustrated his ability to discharge his duties as a director. Reputational Damage [75] The continued delay in delivering vacant possession despite the CCC issuance risks causing reputational damage to the Company. This is particularly concerning given the Project's prominent location in Kuala Lumpur city centre. [76] Such reputational damage constitutes a hardship that extends beyond immediate financial losses, potentially affecting the Company's future business prospects. S/N oDtlr5RviUy5KUkKlgOh7A Balance of Convenience [77] In determining where the balance of convenience lies, I must consider which course of action is likely to cause the least injustice if it subsequently transpires that the decision was wrong. Competing Claims of the Parties [78] Frankie argues that the balance of convenience favours varying the injunction orders to allow him to proceed with necessary operational matters. He contends that: a) He has been responsible for operating the Company since day one; b) He has successfully secured the CCC despite challenges; c) Further delay will cause the Company to incur unnecessary liabilities; and d) Freya's actions demonstrate an intent to have the Company wound up rather than maintained as a going concern. [79] Conversely, Freya argues that: S/N oDtlr5RviUy5KUkKlgOh7A a) The Project may not have been completed properly; b) There are financial irregularities that need to be addressed; c) She has a substantial financial investment in the Project and wants to ensure its proper completion; and d) The Company is insolvent and should be managed by court-appointed liquidators. Analysis of Competing Claims [80] After carefully considering the evidence, I find that the balance of convenience favours Frankie's position. Several factors support this conclusion. [81] First, Frankie has demonstrated his commitment to completing the Project by successfully obtaining the CCC. This required substantial work with the relevant authorities and represents a significant milestone. [82] Second, the continued accrual of LAD despite the CCC issuance represents an unnecessary financial burden on the Company. Allowing Frankie to proceed with delivering vacant possession would stop this financial bleeding. S/N oDtlr5RviUy5KUkKlgOh7A [83] Third, the ongoing appeal creates urgency for appointing legal representation. Without representation, the Company risks an adverse judgment that could significantly increase its liabilities. [84] Fourth, while Freya has raised concerns about financial irregularities, these appear to relate primarily to historical matters rather than the immediate operational requirements of the Company. These concerns, which date back to previous financial years, can be addressed through proper accounting and potentially legal action if necessary, but they do not justify preventing urgent operational decisions from being made. [85] Fifth, the Company's position as a going concern appears precarious, with both parties acknowledging substantial debts. However, the evidence suggests that completing the Project and delivering vacant possession would improve rather than worsen this position by stopping the accrual of LAD and potentially releasing funds from the HDA. [86] Sixth, while Freya claims she wants the Project to be properly completed, her actions in delaying consent for matters necessary to complete the delivery process are inconsistent with this claim. The evidence suggests a pattern of delays and obstacles that have frustrated the Company's operations. S/N oDtlr5RviUy5KUkKlgOh7A [87] Seventh, the regulatory approvals obtained (CCC and KPKT's approval for delivery of vacant possession) provide objective validation that the Project is ready for completion. These approvals from statutory authorities carry significant weight and suggest that further delays are not justified on quality or compliance grounds. Decision on Balance of Convenience [88] Based on these factors, I find that the balance of convenience strongly favours allowing Frankie to proceed with the operational matters necessary to complete the delivery of vacant possession, settle the Company's debts, and ensure it meets its statutory obligations. [89] While I acknowledge Freya's concerns about financial management, these can be addressed through other means, including potentially through the Judicial Management Application or through separate legal proceedings focused specifically on those concerns. [90] The most immediate priority must be to prevent further unnecessary financial losses to the Company, particularly through the continued accrual of LAD. Analysis of Specific Prayers [91] Having determined that there has been a material change of circumstances, that the injunction orders have caused S/N oDtlr5RviUy5KUkKlgOh7A undue hardship, and that the balance of convenience favours varying the injunction orders, I now turn to consider each of the specific variations sought by Frankie in Enclosures 59 and 78. Submission of Reports to KPKT [92] Paragraph 7.1 seeks permission for Frankie to deal with relevant authorities, including submitting the Laporan Kemajuan Kewangan to KPKT. [93] I find that this variation should be allowed. The evidence shows that the Company has already incurred fines of RM10,000 for failing to submit the Laporan Kewangan Tahunan Beraudit (7E), and further delays risk additional penalties. The submission of these reports is a statutory requirement, and failing to fulfil this obligation is clearly detrimental to the Company's interests. [94] Freya's objections appear to be based on her desire for additional documentation and verification. However, given that these submissions are already overdue, and penalties have been incurred, I find that further delay is not justified. S/N oDtlr5RviUy5KUkKlgOh7A Valuation Certification to Aino Furnishing [95] Paragraph 7.4 seeks permission for Frankie to issue the Valuation Certification to Aino Furnishing for its works done. [96] Freya objects on the basis that the work should be certified by an independent professional. While this is a reasonable concern in principle, the evidence suggests that: a) Freya has not taken steps to appoint such a professional despite being invited to do so; and b) The delay in issuing the certification is impacting the Company's relationship with a supplier. [97] I find that this variation should be allowed, but with a modification: Frankie should engage an independent qualified professional to review and certify Aino Furnishing’s work before issuing the Valuation Certification. This addresses Freya's legitimate concern while allowing the matter to proceed. Appointment of Solicitors for Arbitration Proceedings [98] Paragraph 7.6 seeks permission for Frankie to appoint solicitors to represent the Company in Arbitration proceedings initiated by Hubei. S/N oDtlr5RviUy5KUkKlgOh7A [99] I find that this variation should be allowed. The evidence suggests that the Hubei has filed an application for leave to continue with the arbitration proceedings despite the Judicial Management Application. Without legal representation, the Company risks an adverse award that could significantly increase its liabilities. [100] Freya's objection that the Company has no funds to appoint solicitors does not hold water, as Frankie has pointed out (and Freya has acknowledged in Paragraph 28 of Enclosure 74) that funds will be injected into the Company upon the CCC issuance. [101] I accept Frankie's submission that a company's entitlement to legal representation is well-established in cases such as Ketua Pengarah Buruh v Britania Brands (Malaysia) Sdn Bhd [2010] MLJU 504 (CA) and Elin Hong Pei Shang v TBH Wellness Sdn Bhd & Anor [2024] MLJU 2742 (HC). Loan Disbursement Matters [102] Paragraph 7.8 seeks permission for Frankie to deal with matters requested by RHB Bank Berhad and any other related parties in relation to loan disbursement. [103] I find that this variation should be allowed. The evidence shows that Freya's solicitors had indicated consent for Frankie to arrange for the necessary documents for loan S/N oDtlr5RviUy5KUkKlgOh7A drawdown on 10.10.2024, yet she has failed to provide her consent for specific documents required by the bank. [104] The disbursement of loans is critical for alleviating the Company's financial pressures. Delays in this process directly impact the Company's ability to meet its obligations to creditors and could potentially jeopardise its financial stability. Appointment of Solicitors for Appeal [105] Paragraph 7.9 seeks permission for Frankie to appoint solicitors to represent the Company in Appeal 164 initiated by IPM. [106] I find that this variation should be allowed. The appeal will potentially be heard if IPM’s intervener application is successful, and the Company is currently without legal representation. Failure to appoint solicitors would leave the Company unrepresented in a matter that could potentially increase its liabilities by RM3,300,000.00 plus interest. [107] Freya's objection that there is no urgency due to the stay arising from the Judicial Management Application is not persuasive. Even if the appeal is currently stayed, it is prudent to appoint solicitors to prepare for the eventuality that leave to proceed might be granted. S/N oDtlr5RviUy5KUkKlgOh7A Housing Development Account Claims [108] Paragraph 7.10 seeks permission for Frankie to submit claims to the Company's HDA. [109] I find that this variation should be allowed. With the CCC issued, the Company is entitled to withdraw funds from the HDA. These funds are crucial for settling outstanding debts and ensuring the Company's continued operation. [110] While Freya has raised concerns about potential misuse of these funds, I find that this concern can be addressed through appropriate safeguards rather than by preventing the withdrawal altogether. Utilisation of Funds to Settle Debts [111] Paragraph 7.11 seeks permission for Frankie to arrange for the Company to utilise funds from the HDA and loan disbursements to settle outstanding debts. [112] I find that this variation should be allowed, but with modifications to address Freya's legitimate concerns about financial management. Specifically, Frankie should: a) Provide Freya with a detailed list of creditors, including the amounts owed and the proposed payment schedule, at least seven days before making any payments; S/N oDtlr5RviUy5KUkKlgOh7A b) Prioritise payments that are necessary to avoid legal proceedings or statutory penalties; and c) Maintain proper records of all payments made, with supporting documentation. [113] This approach balances the need to settle debts promptly with the need for transparency and accountability in financial management. Audit Exercise [114] Paragraph 7.12 seeks permission for Frankie to arrange for the auditor to conduct the Audit Exercise for the financial year ended 31.3.2024. [115] I find that this variation should be allowed. The completion of the audit is a statutory requirement, and failure to do so has already resulted in penalties. While Freya has raised concerns about historical accounting practices, these can be addressed during the audit process rather than by preventing the audit from proceeding. [116] However, to address Freya's concerns, I direct that the audit should be conducted by an independent auditor agreed upon by both parties, or failing agreement, appointed by the court. S/N oDtlr5RviUy5KUkKlgOh7A Submission of Audited Report to KPKT [117] Paragraph 7.13 seeks permission for Frankie to deal with matters relating to the submission of the Laporan Kewangan Tahunan Beraudit (7E) to KPKT. [118] I find that this variation should be allowed, contingent on the completion of the audit as directed above. The submission of this report is a statutory requirement, and further delays will only result in additional penalties for the Company. Legal and Practical Considerations [119] In reaching my decision, I have been mindful of several legal and practical considerations that deserve explicit acknowledgment. Corporate Decision-Making [120] I am cognisant that directors typically act collectively, and the court should generally be reluctant to interfere with internal management matters. As noted in cases such as Owen Sim Liang Khui v Piasau Jaya Sdn Bhd & Anor [1996] 1 MLJ 113 (FC), courts have traditionally been reluctant to interfere with matters relating to the internal management of incorporated companies. S/N oDtlr5RviUy5KUkKlgOh7A [121] However, the present case involves exceptional circumstances where the normal mechanisms of corporate decision-making have broken down due to the deadlock between the directors. In such circumstances, the court's intervention is justified to prevent injustice and to protect the Company's interests. [122] The variations I have allowed are narrowly focused on specific operational matters necessary to complete the Project, deliver vacant possession, and ensure compliance with statutory obligations. They do not give Frankie carte blanche to make all decisions unilaterally. Judicial Management and Winding-Up Proceedings [123] I am also mindful of the pending Judicial Management Application and Winding-Up Petition. However, I do not consider these proceedings to be barriers to the variations I have allowed. [124] First, even if the Company ultimately becomes subject to Judicial Management or is wound up, it is in the interests of all stakeholders, including creditors, that the Company minimises its liabilities and maximises its assets in the interim. The variations I have allowed serve this purpose. [125] Second, the specific matters addressed in the variations (such as statutory submissions, legal representation, and debt settlement) would likely be pursued by a Judicial S/N oDtlr5RviUy5KUkKlgOh7A Manager or Liquidator if appointed. Allowing Frankie to proceed with these matters now simply accelerates this process. [126] Third, Section 410 of the Companies Act 2016, which stays proceedings against a company subject to a Judicial Management application, does not prevent the company from taking steps to protect its own interests, such as appointing legal representation or making statutory submissions. Safeguards Against Misuse [127] I acknowledge Freya's concerns about potential mismanagement of the Company's finances. To address these concerns, I have included safeguards in my decision, such as requiring independent certification for Aino Furnishing's work, detailed disclosure of proposed debt payments, and an independent audit. [128] These safeguards strike a balance between enabling necessary operational decisions and ensuring proper accountability. CONCLUSION [129] For the reasons set out above, I allow the Plaintiff's application in Enclosure 78 with the modifications and safeguards specified in this judgment. S/N oDtlr5RviUy5KUkKlgOh7A [130] I hereby order that the Amended Ad Interim Injunction Order be further varied to permit the Plaintiff to execute the following matters on behalf of the Company: a) To deal with the relevant authorities, including submitting the Laporan Kemajuan Kewangan to KPKT; b) To issue the Valuation Certification to Aino Furnishing for its works done, subject to prior review and certification by an independent qualified professional to be appointed by the Plaintiff; c) To appoint solicitors to represent the Company in relation to the Arbitration proceedings at the Asian International Arbitration Centre (AIAC) initiated by Hubei against the Company; d) To deal with all matters as requested by RHB Bank Berhad and any other related parties in relation to the loan disbursement, including issuing the Letter in relation to the Differential Sum Payment Confirmation to Messrs Donny & Ong and the Master Letter of Undertaking to RHB Bank Berhad; S/N oDtlr5RviUy5KUkKlgOh7A e) To appoint solicitors to represent the Company in relation to the Appeal 164 initiated by IPM against the Company; f) To submit claims to the Company's HDA; g) Upon receipt of funds from claims made on the Company's HDA and loan disbursements from the banks to the Company, to arrange for the Company to utilise the said funds to settle all outstanding debts owed by the Company to any third parties and/or authorities, subject to providing the 1st Defendant with a detailed list of creditors, amounts owed, and proposed payment schedule at least seven days before making any payments, prioritising payments necessary to avoid legal proceedings or statutory penalties, and maintaining proper records of all payments made; h) To arrange for an independent auditor, to be agreed upon by both parties or appointed by the court in the absence of agreement, to conduct the Audit Exercise for the Company for the financial year ended on 31.3.2024; and i) To deal with all matters relating to the submission of the Laporan Kewangan Tahunan S/N oDtlr5RviUy5KUkKlgOh7A Beraudit (7E) to KPKT, contingent on the completion of the audit as directed. [131] This order shall remain in effect until the full and final disposal of Enclosure 6 in this action. [132] I order that the costs of this application be costs in the cause. ENCLOSURE 130 INTRODUCTION [133] Before the court is the Plaintiff's application in Enclosure 130 to vary the amended Order Ad Interim Injunction varied by this court on 6.2.2025 (Enclosure 129) to allow the Plaintiff to deal with and arrange all matters in relation to the delivery of vacant possession to the purchasers, following the approval of KPKT for the application of the Permohonan Penyerahan Milikan Kosong Tanpa Hakmilik. THE APPLICATION [134] Frankie's application in Enclosure 130 seeks a further variation of the amended ad interim injunction order (Enclosure 129) specifically to include the following term: S/N oDtlr5RviUy5KUkKlgOh7A “10. Upon the approval of the application of the Permohonan Penyerahan Milikan Kosong Tanpa Hakmilik by the Ministry of Housing and Local Government (KPKT), the Plaintiff is allowed to deal with and arrange all matters in relation to the delivery of vacant possession to the purchasers.” [135] The application is made pursuant to Order 42 Rule 13 of the Rules of Court 2012, Section 51(1) of the Specific Relief Act 1950, Order 92 Rule 4 of the Rules of Court 2012, and/or the inherent jurisdiction of this court. RESPECTIVE PARTIES' SUBMISSIONS Frankie’s Submissions [136] Frankie submits that there has been a material change of circumstances since the injunction orders were granted, particularly after KPKT approved the delivery of vacant possession on 5.3.2025. The approval stipulates that vacant possession must be completed by 30.5.2025, leaving only a limited time frame for the Company to comply. Despite KPKT's approval, Freya has continued to withhold her consent for the delivery of vacant possession to purchasers, raising various concerns that are not conditions imposed by KPKT. [137] Frankie further submits that the Company is suffering undue financial hardship due to the injunction orders and Freya's refusal to provide consent for essential operations. The Company is incurring LAD of S/N oDtlr5RviUy5KUkKlgOh7A approximately RM387,678.36 per month. From 30.10.2024 until 31.3.2025, the Company has suffered LAD losses amounting to approximately RM1,615,972.51. Since the injunction order was obtained on 26.8.2024, the accumulated LAD until 31.3.2025 is approximately RM2,307,013.38, with a projected total of RM5,296,783.95. [138] Frankie also highlights that several purchasers, many of whom are related to or associated with Freya, have already made demands for LAD. These include Freya's aunt and cousin (Unit 32C), Freya's friend's son (Unit 31D), a friend of Freya's mother (Unit 25D), and Freya's husband's classmate (Unit 25A). Frankie argues that Freya's refusal to consent to the delivery of vacant possession is calculated to benefit herself and her associates through the accumulation of LAD. [139] Frankie submits that the balance of convenience favours varying the injunction order, as he has been responsible for operating the Company since its inception and has successfully secured the CCC despite Freya's obstruction. In contrast, Freya has consistently supported the Winding-Up Petition against the Company and has taken no steps to maintain it as a going concern. S/N oDtlr5RviUy5KUkKlgOh7A Freya’s Submissions [140] Freya opposes the application on the grounds that numerous issues need to be addressed before vacant possession can be delivered responsibly. She contends that the Project is not truly ready for handover despite the CCC and KPKT approval. [141] Freya submits that she has discovered several issues, including: a) discrepancies in the as-built drawings provided to DBKL; b) outstanding issues with the passenger and Bomba lifts, with discrepancies in the amount owed to Schindler; c) Frankie's failure to provide essential information for the delivery of vacant possession, such as confirmation of rebates given to purchasers and statements of account; d) the locking down of the project site by the Project Management Consultant (“PMC”) due to non-payment of fees; S/N oDtlr5RviUy5KUkKlgOh7A e) Frankie's claim that keys to individual units were not handed over by the main contractor, raising security concerns; and f) the lack of an appointed property manager to handle the process of handing over vacant possession. [142] Freya further submits that she has discovered irregularities in the Company's financial management, including loans to Ant Capital Sdn Bhd (a company wholly owned by Frankie), payments to Season Success Marketing Sdn Bhd, and discrepancies in the signatures of the architect on various documents, including the CCC. [143] Freya argues that these issues need to be resolved before vacant possession is delivered, and that rushing to deliver vacant possession without addressing these fundamental problems would expose the Company to potential liabilities. She submits that her concerns are legitimate and in accordance with her fiduciary duties as a director. ANALYSIS AND FINDINGS Material Change of Circumstances [144] The court must first determine whether there has been a material change of circumstances since the injunction S/N oDtlr5RviUy5KUkKlgOh7A orders were granted, which would warrant a variation of the amended ad interim injunction order. [145] In Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [supra], the Supreme Court held that an interlocutory injunction may be set aside or varied if the aggrieved party can prove “a change of circumstances or new facts having come to light” after the granting of the injunction. [146] I find that there has indeed been a material change of circumstances in this case. First, Frankie successfully secured the CCC for the Project on 30.10.2024. This was a significant milestone that changed the status of the Project from under construction to completion. [147] More importantly, the approval by KPKT on 5.3.2025 of the Permohonan Penyerahan Milikan Kosong Tanpa Hakmilik constitutes a material change of circumstances that directly affects the delivery of vacant possession. The approval stipulates a specific timeline for the Company to complete the delivery of vacant possession by 30.5.2025, creating a time-sensitive urgency that did not exist before. [148] I note that the amended ad interim injunction order (Enclosure 129) already acknowledges the importance of allowing Frankie to submit the application to KPKT, but it does not address the subsequent steps required after S/N oDtlr5RviUy5KUkKlgOh7A approval. Since the approval has now been obtained, there is a clear change in circumstances that warrants considering a further variation to the injunction order. Undue Hardship [149] Having established a material change of circumstances, the court must consider whether the current injunction order is causing undue hardship to Frankie and the Company's operations. [150] In The Store (Terengganu) Sdn Bhd v Abi Construction Sdn Bhd & Anor [supra], the court recognised that an injunction order may be discharged, varied, or set aside if it causes undue hardship to the party against whom it was granted. [151] Based on the evidence presented, I find that the injunction order, by requiring Freya's consent for the delivery of vacant possession, is causing significant financial hardship to the Company. The Company is incurring LAD of approximately RM387,678.36 per month. Since the injunction order was obtained on 26.8.2024, the accumulated LAD until 31.3.2025 is approximately RM2,307,013.38, with a projected total of RM5,296,783.95. [152] The evidence also shows that several purchasers have already made demands for LAD, including relatives and S/N oDtlr5RviUy5KUkKlgOh7A associates of Freya. If vacant possession is not delivered by the KPKT deadline of 30.5.2025, the Company will continue to incur substantial LAD, potentially leading to further financial distress. [153] Furthermore, if the KPKT approval lapses without the Company delivering vacant possession, the Company may need to reapply for approval, causing additional delays and expenses. This would severely impact the Company's financial position and reputation. [154] I am satisfied that the requirement for Freya's consent, in light of her continued refusal to provide such consent despite KPKT's approval, is causing undue hardship to the Company and Frankie. Validity of Freya’s Concerns [155] Freya has raised several concerns regarding the readiness of the Project for the delivery of vacant possession. I must consider whether these concerns are sufficiently substantial to justify her withholding of consent. [156] Firstly, regarding the CCC, I note that it has been duly issued and endorsed by DBKL. The CCC is an official certification that the Project has been completed in accordance with approved plans and complies with relevant regulations. While Freya has raised concerns S/N oDtlr5RviUy5KUkKlgOh7A about discrepancies in the architect's signatures, she has not taken any formal steps to challenge the validity of the CCC since it was issued on 30.10.2024. [157] Secondly, the approval by KPKT for the delivery of vacant possession indicates that the regulatory authority responsible for housing development is satisfied that the Project meets the requirements for handover to purchasers. This approval would not have been granted if there were serious concerns about the Project's readiness. [158] Regarding the specific issues raised by Freya: a) As-built drawings: While there may be discrepancies, this is a technical matter that can be resolved without delaying the delivery of vacant possession. DBKL's request for the AutoCAD file is a procedural matter that does not affect the safety or habitability of the units. b) Passenger and Bomba lifts: The discrepancy in the amount owed to Schindler (RM419,649.59 vs. RM397,532.15) is a financial matter that can be resolved separately from the delivery of vacant possession. There is no evidence that the lifts are not operational or unsafe. S/N oDtlr5RviUy5KUkKlgOh7A c) Information for delivery of vacant possession: The information requested by Freya, such as confirmation of rebates and statements of account, can be prepared by the Company's staff during the process of arranging for delivery of vacant possession. Requiring all this information to be provided before granting consent may not be practical given the time constraints and appears to prioritise administrative completeness over the pressing need to meet the KPKT deadline. d) Lockdown by PMC: The recent lockdown of the site by the PMC due to non-payment is a matter that arose after the filing of this application. It highlights the urgent need for the Company to be able to proceed with its operations, including making necessary payments, rather than being a reason to delay the delivery of vacant possession. e) Missing keys: Frankie's claim that keys were not handed over by the main contractor is a practical issue that can be resolved by obtaining duplicate keys, if necessary. It is not a fundamental obstacle to the delivery of vacant possession. S/N oDtlr5RviUy5KUkKlgOh7A f) Property manager: The appointment of a property manager, while important, is not a prerequisite for the delivery of vacant possession. This matter can be resolved concurrently with the preparation for delivery. [159] I find that while Freya's concerns are not entirely without merit, they are issues that can be addressed during the process of arranging for the delivery of vacant possession, rather than being prerequisites that must be resolved before the process can even begin. None of these concerns are of such a nature that they would justify delaying the delivery of vacant possession past the KPKT deadline, especially given the substantial financial implications for the Company. Balance of Convenience [160] In considering whether to vary the injunction order, I must assess where the balance of convenience lies. This involves weighing the potential harm to each party if the injunction is or is not varied. [161] If the injunction is not varied to allow Frankie to proceed with arrangements for the delivery of vacant possession, the Company will continue to incur substantial LAD, potentially facing further financial distress. The KPKT approval may lapse, requiring the Company to reapply and causing additional delays and expenses. This would S/N oDtlr5RviUy5KUkKlgOh7A affect not only the Company but also the purchasers who have been waiting for their units. [162] On the other hand, if the injunction is varied, Freya may have less control over the process of delivering vacant possession. However, as a director, she would still have the right to be informed of and provide input on the arrangements being made. The variation would not prevent her from exercising her oversight role; it would merely remove her ability to unilaterally block the process. [163] I find that the balance of convenience clearly favours varying the injunction order. The potential harm to the Company from continued delay is substantial and immediate, while any potential harm to Freya from allowing Frankie to proceed with arrangements is limited and can be mitigated through proper communication and reporting. [164] It is also worth noting that the purpose of the original injunction was to prevent Frankie from making unilateral decisions without consulting Freya, not to enable Freya to obstruct the Company's operations. Allowing Frankie to proceed with arrangements for the delivery of vacant possession, following the approvals by the relevant authorities, is consistent with the proper operations of the Company and does not undermine the purpose of the injunction. S/N oDtlr5RviUy5KUkKlgOh7A Safeguards and Limitations [165] While I find that the injunction should be varied to allow Frankie to deal with matters related to the delivery of vacant possession, I also recognise the need for appropriate safeguards to ensure that Freya's role as a director is respected. [166] Freya should continue to be kept informed of the arrangements being made for the delivery of vacant possession. Frankie should provide regular updates and take into account any reasonable concerns raised by Freya. This would ensure that Freya can continue to exercise her oversight role while allowing the Company to proceed with its operations. [167] Furthermore, the variation is specifically limited to matters related to the delivery of vacant possession following KPKT's approval. It does not extend to other aspects of the Company's operations that are not directly connected to this specific purpose. CONCLUSION AND ORDER [168] Having considered all the evidence and submissions, I find that: a) There has been a material change of circumstances since the granting of the S/N oDtlr5RviUy5KUkKlgOh7A injunction orders, particularly the approval by KPKT on 5.3.2025 for the delivery of vacant possession. b) The current injunction order, by requiring Freya's consent for the delivery of vacant possession, is causing undue hardship to the Company and Frankie. c) The concerns raised by Freya, while not entirely without merit, are not of such a nature as to justify delaying the delivery of vacant possession past the KPKT deadline. d) The balance of convenience clearly favours varying the injunction order to allow Frankie to proceed with arrangements for the delivery of vacant possession. [169] Accordingly, I allow the application in Enclosure 130 and order that the amended ad interim injunction order (Enclosure 129) be further varied by adding the following term: “10. Upon the approval of the application of the Permohonan Penyerahan Milikan Kosong Tanpa Hakmilik by the Ministry of Housing and Local Government (KPKT), the Plaintiff is allowed to deal with and arrange all matters in relation to the delivery of vacant possession to the purchasers.” S/N oDtlr5RviUy5KUkKlgOh7A [170] I order that the costs of this application be costs in the cause. 6 August 2025 ATAN MUSTAFFA YUSSOF AHMAD Judge Kuala Lumpur High Court (Commercial Division) Counsel: For the Plaintiff: Choo Shi Jin with Woo J Enn and Ko Jie Yang (Messrs J Koh & Partners) For the 1st Defendant: Ong Chin Siong with Venka Arun (Messrs Siong & Rita) S/N oDtlr5RviUy5KUkKlgOh7A