Wong Tzy Jian v Wong Keh Yen (WA-22NCC-357-06/2025)

WONG KEH YEN

REAL HARVEST PTE LTD

KEH YEN, NG & PARTNERS (disaman sebagai firma) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 56)

The Defendants are currently subject to an interim injunction granted by this Court on 5-8-2025 (“Order”). The Order operates like a freezing order on specific funds amounting to RM10,345,989.41, comprising RM4,833,458.47 (in the form of 9 PD cheques drawn on the 3rd Defendant (“D3”)’s account as S/N 4gf9siVevk6TlX8MigfpHg stakeholders) and RM5,512,530.94 (“Leadmont Funds”). These funds belong to the 2nd Defendant (“D2”).

Although the Defendants have appealed to the Court of Appeal against the Order, D2 and D3 have on 30-10-2025, also applied to vary the terms of the Order to allow up to RM60,000 per month for ordinary business expenses of D2, legal fees incurred by D2, and repayments to 1st Defendant (“D1”) of advances made by D1 to D2 (“Enclosure 56”). This application raises questions about the scope of the Court’s power to vary its own interim orders. Background facts

In the underlying action, the Plaintiff claims to be the beneficial owner of a single issued share held by D1 in D2. D1 is also a director of D2 and a Partner of D3. According to the Plaintiff, D2 is an investment vehicle to hold funds in Singapore, and D1 is a nominee because of her Singapore PR status. The Plaintiff and D1 are related as siblings, and they are also executors of the estate of their father and mother, respectively.

The nature of the underlying business that the family was engaged in with their corporate entities was not apparent from the facts, but apparently, there were multiple unresolved issues with creditors of the deceased parents and the Plaintiff, involving loans taken by related corporate entities that were secured by their personal guarantees. S/N 4gf9siVevk6TlX8MigfpHg

As it relates to the present action, the Plaintiff is the majority shareholder of Leadmont Development Sdn Bhd (“Leadmont”). D2 had entered into a loan agreement with Leadmont on 9-9-2009 to lend RM100 million to Leadmont. Leadmont was placed under Judicial Management on 16-12-2021 and on 14-12-2022, creditors of Leadmont, including D2, approved a Statement of Proposal for distribution to creditors over 5 years.

D2 appointed D3 as stakeholder to receive distributions from Leadmont. These are the Leadmont Funds that the Plaintiff sought to preserve by the Order. The Plaintiff’s allegation against D1 is that she had admittedly used the Leadmont funds to pay third parties for estate purposes i.e. to settle debts, and that this was unauthorised and unconnected to D2.

On 5-8-2025, this Court granted an interim injunction pending the disposal of this action. Upon the usual undertaking of the Plaintiff as to damages, the Order: a) restrained the Defendants from paying out or dissipating the Leadmont Funds or changing the share structure of D2; and b) ordered D1 and/or D2 to file a comprehensive statement of account of all receipts and disbursements of the Leadmont Funds; with liberty to apply.

On 30-10-2025, D2 and D3 filed the application in Enclosure 56. S/N 4gf9siVevk6TlX8MigfpHg Analysis and findings Power to vary sealed Orders

D2 and D3 argued that the power of this Court to vary the Order derives from Order 42 Rule 13 of the Rules of Court 2012 and the inherent jurisdiction of the Court through the “liberty to apply” clause in the Order, relying on the Federal Court decision in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 (“Stone World”): “[19] Where is this jurisdiction to amend or supplement the original sealed order found? It is found in the inherent jurisdiction of the courts. The superior courts possess a residual inherent jurisdiction to, inter alia, clarify the terms of an order and to make ancillary orders primarily to give effect to the decision or judgment handed down. It is a necessary jurisdiction to enable a court to ensure that substantive justice between the parties is served, so as to give effect to its primary decision, through the dispensing of procedural justice. [20] That the court has the jurisdiction to dispense ancillary or supplemental orders to augment or substitute the original relief or remedy so as to give effect to the intent and purpose of its original decision is not in doubt. The doctrine of functus officio does not encroach upon that jurisdiction. LIBERTY TO APPLY [21] And the form in which the exercise of such inherent jurisdiction is effected is via the ‘liberty to apply’ rule. ` S/N 4gf9siVevk6TlX8MigfpHg although this right is often expressly reserved in relation to final orders. The existence of such an inherent right has been expressly recognised in two Malaysian cases.” [Emphasis added]

Although D2 and D3 submitted on the exceptions to the functus officio rule that allow a Court to re-visit a sealed Order and vary its terms, as summarised in the Federal Court case of Stone World, above, namely:

to reflect the original intention of the court which is evident from the previous and original order, or the body of the judgment of the original order;

under the slip rule O 20 r 11 of the Rules of Court 2012 (‘the Rules’) to correct a clerical error or a similar form of slip;

to clarify, supplement or amend a previous order so as to give effect to the original order under the ‘liberty to apply’ provisions; and

if there is provision in the Rules to that effect, to enlarge time specified, counsel conceded that the Order is a perfectly clear and workable order. It was not apparent that any of the above exceptions apply.

In Stone World, the impugned order was a consequential order made to substitute the original relief ordering delivery up on a finding of detinue, with an order for damages to be assessed because the marble stone to be delivered up had become S/N 4gf9siVevk6TlX8MigfpHg dilapidated over an extended period of non-compliance. The Federal Court held: “[66] The High Court was fully entitled to make the consequential order as the doctrine of functus officio does not take away the inherent power of court to make consequential orders. We are fortified in our conclusion by, inter alia, the cases of Yap Kian @ Yap Sin Tian v Poh Chin Chuan @ Ors [2016] 7 MLJ 805 and CCI Technology San Bhd & Ors v Pernec Ebiz Sdn Bhd [2016) 2 CLJ 379. [67] The High Court was entitled to make such further order as was necessary to give effect to its judgment, and exercised its inherent jurisdiction to do so under O 92 r 4. The liberty to apply rule is an exception to the functus officio doctrine allowing the court to give effect to its final judgment or order by making consequential orders. … [72] The answer is that the consequential order was not made in 'want of jurisdiction". The consequential order does not transgress the functus officio rule. On the contrary, the court retains jurisdiction, particularly under the ‘liberty to apply’ exception to grant such an order which is calculated to ensure that the final judgment order is not rendered useless.”

So apart from the exceptions highlighted, the functus officio rule otherwise applies as a matter of principle. It also applies to sealed interlocutory orders as seen in the decision of the Federal Court in S/N 4gf9siVevk6TlX8MigfpHg Tan See Siong & Anor v Herman Ando [2011] 3 MLJ 429 (“Tan See Siong”) which considered the variation of an interim injunction by a High Court after it was sealed. There, the Court of Appeal had allowed an appeal by the plaintiff who was dissatisfied with the variation order on grounds that the Judge was functus officio. This was affirmed by the Federal Court that held as follows when dismissing leave to further appeal: “It is a well-established law that a judge is functus officio once he has delivered his judgment. A party who is dissatisfied with this judgment can appeal against it. The said judge cannot vary his own judgment except under the ‘slip rule (O42 r5 of the Rules of the High Court) or within the exceptions expressed in Badiaddin bin Mohd Mahinid & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393. In this case neither of these exceptions applies.”

However, the Defendants referred to a line of cases that have departed from general rule as it relates to interim orders, starting with Government of Malaysia v Lim Kit Siang; United Engineers (M) Bhd v Lim Kit Siang [1988] 2 MLJ 12 (“UEM”). In UEM, the Supreme Court held that an interlocutory injunction may be set aside or varied because one granted with liberty to apply is provisional, and the court retains the jurisdiction to vary or discharge it when reconsidering the merits.

Without needing to delve too deeply into the substantive issue of locus standi considered in UEM and recent developments in this area of the law, the majority view was that an earlier interlocutory injunction granted by one Supreme Court panel on appeal against S/N 4gf9siVevk6TlX8MigfpHg its refusal by the High Court, could be revisited and discharged by another panel of the Supreme Court, because the earlier injunction was interim in nature, was granted “with liberty to apply” and was not definitive or conclusive.

In UEM, the review and discharge of the earlier injunction was done in conjunction with a second appeal on a concurrent application filed to strike out the suit. The High Court also dismissed that application. Upon reconsideration, the Supreme Court found that Lim Kit Siang had no cause of action and no locus standi, and that the injunction was contrary to section 29 of the Government Proceedings Ordinance 1956. It could be said that there was no need to revisit the injunction since it would have fallen away with the striking out of the suits, but the point on the power of the Court to review its own decision on an interim injunction was made.

This power was recently revisited in Wong Man Fai Frankie v Tseng Freya Hemmon Fan Yea & Anor [2025] MLJU 2385, citing UEM, The Store (Terengganu) Sdn Bhd v Abi Construction Sdn Bhd & Anor [2013] MLJU 1650 and WRP Asia Pacific Sdn Bhd & Anor v Tael Tijari Partners Ltd & Ors [2019] MLJU 1244. All of these authorities and the references they make, support the proposition that where an interim injunction has been ordered after the parties have been heard, the order shall not be discharged, varied or set aside except in the following circumstances, gleaned from the authorities: a) where such discharge, variation or setting aside has been necessitated by a change in the circumstances; or S/N 4gf9siVevk6TlX8MigfpHg b) where the Court is satisfied that the order has caused undue hardship to a party; or c) when the original order is found to have been based upon a fundamental mistake or erroneous view of the law.

This Court noted of the majority view in UEM and considered itself bound by the later Federal Court decision in Tan See Siong as a matter of principle. However, this Court recognizes that there is a general endorsement of the alternate view that the Court is not functus officio based on the words of section 51 of the Specific Relief Act 1950 on temporary injunctions that are such as are to continue until a specified time “or until further order of the court.” This may be the better view, since the balance of justice that underpins a decision can change through no fault of any party.

It must have been on this basis also, that the High Court Judge who granted the Order, expressly left the door open for parties to apply to vary the Order. As set out in his grounds of judgment: “[152] Moreover, the Defendants can apply to court if they contend that specific payments are necessary and proper. The court retains control and can vary the injunction if circumstances require.”

Although the terms of the Order did not leave room for interpretation of its scope on the restraining order therein, the Judge expressly left open to the parties, the liberty to apply if D2 needs to make specific payments out of the Leadmont Funds that S/N 4gf9siVevk6TlX8MigfpHg are necessary and proper. Thus, this Court rules on these facts, that it is not functus officio to consider Enclosure 56. Grounds for variation of the Order

That said, the principles set out above cannot be understood to afford a dissatisfied party with a second bite at the cherry, and the circumstances that allow him to apply to the same Court to vary or discharge an interlocutory injunction and skip the usual route of appeal, must be confined to very narrowly defined circumstances to prevent endless re-litigation of the same issue in evolving situations.

The Defendants’ arguments were that the Order is in substance, a Mareva injunction, but none of the procedural safeguards for D2, such the provision for allowances were spelled out in the Order. On reviewing the written grounds of judgment of the learned High Court Judge who granted the Order, the application was not argued or decided as a Mareva injunction. The Plaintiff made the case for preservation of the Leadmont funds based on the American Cyanimid principles. If the Defendants’ opposition to the Order is that the wrong test was argued by the Plaintiff and the resulting Order is procedurally defective, this argument could and should have been taken at the hearing to oppose the Order.

Adverting to the complaint that D2 cannot pay corporate secretarial and legal fees, or refund monies owed to D1, this Court finds that in the present context, where a variation of a sealed order is sought, and as a measure that must necessarily only be resorted S/N 4gf9siVevk6TlX8MigfpHg to as a means to prevent a serious and irreparable injustice, the grounds cited are factually weak.

This Court notes that D2 is an investment holding company with no apparent staff or business operations. The expenses that the variation of the Order is directed at settling, are corporate secretarial fees, legal fees and advances from D1. In this regard, it is also worth highlighting that D1 is the sole director and shareholder of D2, and D3 has taken a neutral stance as stakeholder of any part of the Leadmont Funds in its custody. The underlying dispute in this case, is entirely between the Plaintiff and D1 as the only human actors involved.

The alleged expenses are for services rendered on the instructions of the 1st Defendant, and are not unknown expenses which appeared out of the blue or beyond the expectations or knowledge of the Defendants at the material time. The Ds are not entitled to vary the Order because they failed to adduce all available evidence to make a sufficiently compelling balance of convenience argument in the first instance.

It is also noted that an ad-interim injunction had been earlier granted on 17-6-2025 and the Defendants had sought clarification on the terms of the Order before it was sealed. The need to make allowances for funds to pay for legal fees and the ordinary business expenses of D2 were not raised. Even if it is true that D2 is not operational and the only income it has is the Leadmont Funds, D2 is at liberty to secure and spend from other sources of funding, as the injunction preserves only the Leadmont Funds. S/N 4gf9siVevk6TlX8MigfpHg

In the upshot, there are no material change of circumstances between the filing of the application for the Order and Enclosure 56, or any evidence of undue hardship, or any other compelling reason that warrants the exercise of this Courts power to vary the Order.

For the reasons set out above, Enclosure 56 is dismissed with costs of RM10,000.00 subject to allocator. Bertarikh: 30 Januari 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N 4gf9siVevk6TlX8MigfpHg Peguam Untuk Plaintif: Mark Ho Hing Kheong (Lim Li Huang bersamanya) Tetuan Chellam Wong Untuk Defendan Pertama: Vynny Wong Poh Yee (Chung Jay Shin bersamanya) Tetuan Kee Sern, Siu & Huey Untuk Defendan Kedua dan Ketiga: Foong Mun Loong, Brian (Anson Chee Weng Kian bersamanya) Tetuan Cheang & Ariff S/N 4gf9siVevk6TlX8MigfpHg