Yap Kien Foong v Chong Chiang Han (WA-24NCvC-1830-04/2026)

This is the Plaintiff's Originating Summons dated 03.04.2026 (Encl. 1) seeking, inter alia, declaratory and injunctive reliefs arising out of a partnership dispute concerning Agensi Empat Ekor Setapak Jaya ("the Agency").

The Defendant has also filed a separate application for stay and reference to arbitration pursuant to Clause 19 of the Partnership Agreement and s 10 of the Arbitration Act 2005 (Encl. 12), supported by a Bundle of Authorities. That stay application is closely intertwined with the merits and will be addressed in this judgment to the extent necessary.

The parties agreed that the OS be heard on affidavit and written submissions. The factual matrix is largely common ground; the real contest lies in the legal characterisation of those facts and the consequences that follow. Material facts

The Plaintiff and Defendant are two of eight partners of the Agency, carrying on a number forecast business under a Partnership Agreement dated 26.04.2016 ("the Agreement"). The capital contribution and profit-sharing proportions are expressly set out in Clause 5 and Clause 6. "the net profits of the partnership business shall be divided among the partners in proportion to their respective contributions as stated above."

The Defendant is the licence holder recognised by Empat Nombor Ekor (Selangor) Sdn Bhd ("ENE"), and Clause 17 provides that she shall hold the licence and all monies "IN TRUST FOR AND ON BEHALF of the Agency and shall act according to the instructions of the partners of the Agency."

Originally, Lim Kok Hoon was the Managing Partner. By late 2025, he resigned and, on the evidence, the majority partners appointed the Plaintiff as the new Managing Partner. The Defendant herself acknowledges in Encl. 7 that the Plaintiff was so appointed, though she disputes the legal effect of that appointment.

Commission monies from ENE were historically paid into the Agency's Alliance Bank account ("ABB"). Following ENE's change of practice, various accounts were opened: a joint Public Bank account ("PBB"), a joint Maybank account ("Joint MBB"), and later a sole-name Maybank account ("Sole MBB") in the Defendant's name. The Plaintiff's narrative, supported by contemporaneous letters from the Agency's solicitors, is that the majority partners directed that all ENE commissions be channelled either to Joint MBB or, after its closure, to ABB.

It is undisputed that: o The Defendant unilaterally opened the Sole MBB account in her own name; She unilaterally closed the Joint MBB account; and . She transferred RM520.56 from Joint MBB to PBB and later RM31,084.32 ("the Commission Monies") from Sole MBB to PBB instead of ABB. "Saya kemudiannya telah membuka Akaun Malayan Banking Berhad No. 514404812696 ('Akaun MBB Kedua') atas nama saya sahaja dan seterusnya menutup Akaun MBB Bersama."

The Plaintiff, as Managing Partner, contends these acts are in breach of Clauses 11(b), 12(a) and 17 of the Agreement and contrary to the majority partners' instructions.

The Defendant says she acted in good faith, driven by ENE's compliance requirements and concerns over checks and balances, and that the monies remain in a partnership-related account (PBB) and have not been misappropriated. Issues

The following issues arise for determination: Locus standi: Whether the Plaintiff, suing in his personal capacity, has the requisite locus standi to commence and maintain this originating summons, having regard to the nature of the rights asserted and the reliefs sought. In Ikatan Kelab-Kelab Melayu Negeri Pulau Pinang (499-Penang) (suing through its President, Dato' Seri Hj Mohd Yussof Latiff) & Ors v Yayasan Bumiputra Pulau Pinang & Ors and another appeal [2014] 1 MLJ 27, the Federal Court at paragraph 33, the definition of "locus standi" has been elaborated as follow:- "[33] Abdul Hamid CJ Malaya (as he then was) in the same case at p 27 (MLJ); p 234 (CLJ), defined what is meant by 'locus standi' as follows: 'Locus standi' is generally understood to mean the right of a party to appear and be heard by a tribunal. A litigant is said to have locus standi, in effect standing to sue in a court of law, if that court recognises his or her ability to institute and maintain proceedings before it. The question of standing is thus separate and distinct from questions of the substantive merits and the legal capacity of the plaintiff. It follows, therefore, that a litigant may lack standing to bring a case which would succeed if brought by the right litigant." Existence, scope and character of partnership: Whether, on the facts and the Partnership Agreement dated 26.4.2016, a valid and subsisting partnership exists between the Plaintiff and the Defendant in respect of the Empat Ekor Setapak Jaya agency business, and whether the Defendant is contractually bound by, and remains subject to, the terms of that Agreement. Breach of the Partnership Agreement and/or partnership obligations: Whether the Defendant's admitted and/or proved conduct particularly in relation to the operation, control, use of the firm name, handling of accounts, and dealings with partnership assets and clientele constitutes breaches of the Partnership Agreement and/or of his duties as a partner at law. Form and procedural propriety of originating summons: Whether the use of an originating summons under Order 7 of the Rules of Court 2012 is proper and procedurally appropriate in light of the nature of the dispute, the reliefs sought (including declaratory and injunctive relief), and the presence or absence of substantial disputes of fact. Arbitration clause and stay of proceedings: Whether Clause 19 of the Partnership Agreement constitutes a valid and operative arbitration agreement within the meaning of the Arbitration Act 2005, and if so:

(a) whether the present dispute falls within its scope; and

(b) whether this court is mandated under section 10 of the Arbitration Act 2005 to stay these proceedings and refer the parties to arbitration, or whether any of the recognised exceptions (null, void, inoperative or incapable of being performed) is engaged. Injunctive relief (mandatory and prohibitory): Whether, on the evidence and applicable principles, the Plaintiff has satisfied the legal thresholds for the grant of:

(a) the mandatory injunctions sought (including delivery up, access, and restoration-type orders); and

(b) the prohibitory injunctions sought (including restraints on use of the partnership name, assets, accounts and business), having regard to the balance of convenience, adequacy of damages, and the need to preserve the substratum of the partnership pending final resolution. Analysis Locus standi Partnership personality and suing a partner

In Cheng Teik Chor v Cheng Hooi Chor [2015] MLJU 1122, the High Court at paragraph 7(ii) provided as follows:- "The Defendant contends that the Plaintiff without authorisation from the partnership has no locus standi to commence the legal proceedings herein against the Defendant and to act on the partnership behalf. In the alternative, the Defendant contends that BLDSB at the AGM on 26.9.2012 did not give the Plaintiff any authorisation to file the said claim against the Defendant. The Plaintiff disputes any lack of authorisation and locus standi to sue the Defendant for the money to be paid back to the partnership. It is my considered view that the issues of locus/authorisation raised by the Defendant are points of law which require serious discussion that ought properly be dealt with as a preliminary issue under order 33 rule 2 and not by the summary procedure under order 18 rule 19 (1) Rules of Court 2012. See Oh Theresa v Sia Hok Chai [1992] 1 MLJ 215 where it held (1) "The summary procedure under 018 r 19(1) (a) and (b) can only be adopted when it can be clearly seen that a claim or an answer is on the face of it, "obviously unsustainable". If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for arguments under 0 33 r 2". Next, based on Meyer & Co v Faber (No. 2) [1923] 2 Ch 421, CA which held, "that according to the settled principles of the law of partnership an action could not be brought in the firm name against a partner in the firm, in as much as, that name being merely a collective description of all the partners, the partner against whom it was brought would be both Plaintiff and Defendant", the Plaintiff had correctly sued the Defendant in his personal capacity as a partner cannot sue another partner in the partnership using the partnership's name. There is therefore, also no necessity for any authorisation from the other partners or partnership to sue in such a situation. It is my considered view that the contention of the Defendant on this issue is misconceived in law and in fact."

The Plaintiff relies on Cheng Teik Chor v Cheng Hooi Chor and Fatimah Hiew Yen Won v Saroja (supra) to emphasise that a partnership has no separate legal personality; the firm name is merely to give a commercial face to the partnership.

Unlike a company a firm has no legal identity of its own separate and distinct from the individual partners that constitute the partnership. As such a firm has no capacity to transact any business in its own name. It is the partners who are vested with such capacity.

In Cheng Teik Chor (supra), the High Court held that a partner may sue another partner in his personal capacity and that it would be conceptually incoherent for a firm to sue one of its own partners in the firm name, as that partner would be both plaintiff and defendant.

The Defendant attempts to distinguish Cheng Teik Chor (supra), on the basis that the present reliefs concern the management of the Agency as a whole, bank accounts and partnership monies, and therefore ought to be brought by all partners or at least with formal authorisation of the majority. She argues that Clause 11(b), which requires partners to abide by majority decisions in matters connected with the running of the partnership, implies that litigation itself must be authorised by majority resolution.

With respect, I am of the view that Clause 11(b) has the effect contended. It regulates internal decision-making "in all matters connected with the running of the partnership"; it does not convert the partnership into a separate legal person nor impose a precondition of formal resolution for a partner to vindicate contractual rights against another partner.

The Plaintiff sues in his own name, asserting both his personal rights as partner and his functional responsibilities as Managing Partner. That is squarely within the logic of Cheng Teik Chor (supra). Managing Partner's duties

Clause 11(a) expressly names Lim Kok Hoon as Managing Partner and provides that he "shall also ensure that all the terms and conditions of the licence of the Agency are observed and performed."

Read in isolation, the Defendant urges a narrow construction—that the obligation is personal to Lim Kok Hoon and confined to the ENE licence. That approach, however, sits uneasily with the basic architecture of partnership law.

A partnership is "the relation which subsists between persons carrying on business with a view to profit", and "the name under which their business is carried on is called the firm-name"; the firm itself "has no legal identity of its own separate and distinct from the individual partners that constitute the partnership." In that relational framework, duties attached to an office within the firm are, by design, capable of succession as partners come and go.

The Plaintiff's construction advanced in Encl. 8 and Encl. 16 is that Clause 11(a) attaches its obligations to the office of Managing Partner, not to the person of Lim Kok Hoon. To hold otherwise would mean that upon the resignation or death of the named individual, the partnership would be left without any partner bearing contractual responsibility "to ensure that all the terms and conditions of the licence of the Agency are observed and performed", at precisely the time when continuity and compliance are most needed. That would be commercially and practically absurd.

As Abdul Rahman Sebli J held in the case Fatimah Hiew Yen Won & Anor v Saroja a/p Palaniappan & Anor [2012] MLJU 420, His Lordship had observed in the context of a law firm partnership, "it is the individual partners that constitute the firm, not the namesake. The firm name is merely to give a commercial face to the partnership." In Fatimah Hiew (supra), the court held: [7] Thus a firm is a composition of individuals who entered into a partnership with one another to carry on business with a view to profit. It is the individual partners that constitute the firm, not the namesake. The firm name is merely to give a commercial face to the partnership. Unlike a company a firm has no legal identity of its own separate and distinct from the individual partners that constitute the partnership. As such a firm has no capacity to transact any business in its own name. It is the partners who are vested with such capacity. A plaintiff who sues such partners in their firm name sues them individually just as much as if he had set out all their names: Keow Seng & Company v Trustees of Leong San Tong Khoo Kongsi (Penang) Registered [1983] 2 MLJ 103; [1983] 1 LNS 18 per Raja Azlan Shah LP. The firm may be a sole proprietorship but for austerity the sole proprietor may call his business enterprise "AH Baba & Co".

Thus, in our instant case, the Agreement must therefore be read as a living instrument: the designation "Managing Partner" describes an office within that collective, and the obligations in Clause 11(a) travel with whoever validly occupies that office from time to time.

Once that is accepted, the functional content of Clause 11(a) becomes critical. A duty "to ensure" observance and performance of the licence and partnership terms is not a passive obligation.

In a modern commercial partnership, it necessarily encompasses taking reasonable and proportionate steps to prevent, halt and remedy breaches that threaten the firm's regulatory standing or the partners' agreed rights. Where alleged breaches concern the handling of partnership monies, bank accounts and the integrity of the Agency's licence, it would be artificial to confine the Managing Partner's role to internal persuasion and deny him recourse to the court.

Commencing proceedings to restrain ongoing or threatened breaches is, in my view, a natural and sometimes indispensable extension of the Clause 11(a) duty—particularly where, as here, the alleged wrongdoer is himself a partner and internal consensus is elusive.

On the facts, the Plaintiff wears two hats. First, he is a partner whose proprietary and contractual rights in the Agency and its monies are directly affected by the Defendant's impugned conduct.

Secondly, he is the Managing Partner, contractually charged with ensuring compliance with the licence and the partnership terms. In that dual capacity, he has locus standi both personally (as an aggrieved partner) and functionally (as the officeholder entrusted with enforcement of compliance).

No prior partners' resolution is a precondition to his approaching the court. Even if one were thought desirable as a matter of internal governance, its absence goes, at most, to procedural regularity, not to jurisdiction.

Order 2 rule 1(1) ROC 2012 empowers the court to treat such defects as irregularities that "shall not nullify the proceedings", and to cure them where justice so requires. In the circumstances, I hold that the Plaintiff is properly before the court and entitled to maintain this action in his own name. Partnership and contractual obligations

Section 3(1) of the Partnership Act 1961 defines a partnership as "the relation which subsists between persons carrying on business in common with a view of profit."

In Dev Kumar a/l Sri Ram v Puung Kok Peing (dalam kapasiti sebagai bekas rakan kongsi yang beramal di bawah nama dan gaya Tetuan Yuen & Co) [2024] MLJU 1218, the High Court at paragraph 52 provides further the definition of partnership as a mutual participation in profit and loss as follows: [52] In Tham Kim Fai @ Tham Kim Fay v Ng Kon Seong (2006) 7 MLJ 1: " [1] A partnership is defined in s 3(1) of the Partnership Act 1961 ('Act') as 'the relation which subsists between persons carrying on business in common with a view of profit'. And by s 3(2) of the same Act, it excludes the following forms of company or association which would otherwise fall within the definition and, for brevity, I must now reproduce it verbatim: This means that, unlike a company, a partnership is simply a relationship governing the rights and duties of the partners and their relationships with the rest of society. The main difference between a partnership and a company is this. A partnership does not confer any limited liability on the partners. Thus, a partner is liable without limit for the debts incurred by the other partners in the course of the partnership business. [3] In sharp contrast, perhaps it is ideal to refer to the case of Smith v Anderson [1880] 15 Ch D 247 at 273, CA where James LJ defined "partnership" in a different [2006] 7 MLJ 1 at 6 way. There, this was what His Lordship said (here I would venture to paraphrase it). That an ordinary partnership is a partnership comprised of definite individuals, bound together by contract between themselves to continue for some joint object either during pleasure or during a limited time and it is essentially comprised of the persons originally entering into the contract with one another. That is certainly an old definition of 'partnership' and it is not suitable in the context of our existing Act. But one thing is certain. That a partnership involves a contract between the partners to engage in a business to make a profit. Indeed, Tindal CJ in Green v Beesley [1835] 2 Ring NC 108 at 112 aptly said: I have always understood the definition of partnership to be a mutual participation in profit and loss. [6] It is essential to a partnership that there is a business in existence. Section 2 of the said Act defines 'business' to include every trade, occupation or profession. The basic idea behind the partnership is that the business is set up for the sake of making some money or for obtaining some gain (R v Robson [1885] 16 QBD 137). According to s 4(c) of the said Act, the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business. However, if losses as well as profits are shared then the presumption of partnership is even stronger (Green v Beesley Brett v Beckwith [1856] 26 LJ Ch 130 and Noakes v Barlow [1872] 26 LT 136 Ex Ch)."

As Fatimah Hiew (supra) illustrates, that relation is constituted by the partners themselves; the firm name is merely a convenient label. The legal focus is on whether there is a consensual, profit-oriented business carried on in common by identified persons, not on formalities of branding or internal titles.

The Agreement, read with its preamble and Clauses 5 and 6, and viewed against the parties' conduct, plainly satisfies this statutory definition. The parties agreed to pool their efforts and rights under the ENE licence, to share profits and losses, and to regulate management and financial flows through the Agency.

The Defendant does not dispute that she is a partner and licence holder, nor that she executed the Agreement. Her subsequent participation in the Agency's operations and receipt of partnership monies further evidences a subsisting partnership relation within s 3(1).

Against that backdrop, the Plaintiff is correct to invoke the principle articulated in Malaysian International Trading Corp (Japan) Sdn Bhd v Bentini SPA & Ors [2014] 11 MLJ 255, that a contracting party cannot "cherry pick" clauses that suit its position while ignoring others that impose obligations. As the court there observed, "The first defendant cannot cherry pick those clauses or terms that it feels best suits its arguments; while at the same time, ignore the rest of the clauses that glaringly tell their claim ...".

Once the Defendant accepts the benefits of the Agreement—status as partner, access to the licence, entitlement to a share of profits she must also accept the burdens, including restrictions on unilateral dealings with partnership monies and the requirement to abide by majority decisions.

The relevant clauses as follows in the Agreement:- i. Clause 11(b): "11. (b) The partners shall abide by the decision of the majority in all matters connected with the running of the partnership." ii. Clause 12(a): Forthwith pay all money cheques and negotiable instruments received by him or her on account of the Agency into the said bank to the account of the Agency. iii. Clause 17: "17. At all times CHONG CHIANG HAN shall act in accordance with all the rules and the regulations of ENE. Further, CHONG CHIAN HAN shall hold the license issued by ENE together with all deposits and all monies IN TRUST FOR AND ON BEHALF of the Agency and shall act according to the instructions of the partners of the Agency."

Accordingly, the Defendant is bound by Clauses 11(b), 12(a) and 17. Those provisions, read together, require her:

(i) to comply with decisions of the majority of partners on matters of management;

In partnership terms, these are not optional "best practice" guidelines; they are core fiduciary and contractual obligations that go to the heart of the mutual trust and confidence between partners.

The Defendant's admitted diversion or retention of Agency monies outside the agreed banking structure is therefore not a mere internal disagreement but a breach of both her contractual undertakings and her partnership duties as defined by the Agreement and the Partnership Act. Breach of the Agreement

In the instant case, the Plaintiff identifies three principal breaches:

(a) First breach: Opening and using the Sole MBB account to receive ENE commissions contrary to the majority's instruction to use Joint MBB;

(b) Second breach: Closing Joint MBB unilaterally and transferring RM520.56 to PBB instead of ABB.

(c) Third breach: Transferring RM31,084.32 from Sole MBB to PBB instead of ABB, contrary to the Agency's letter of 16.03.2026.

The Defendant candidly admits the acts but disputes that they amount to wrongful breaches, asserting that ENE required a sole-name account under its e-invoicing framework and that PBB, being a joint account with multiple signatories, preserved checks and balances.

Those explanations go to motive and risk perception, but they do not answer the core question: whether her conduct is consistent with the Agreement and with the majority partners' express instructions. The difficulty with the Defendant's position is twofold.

Instructions of majority partners. The letters of 10.12.2025 and 26.2.2026, and the subsequent letter of 16.3.2026, clearly directed that commissions be channelled to Joint MBB and, after its closure, to ABB. These letters are formal expressions of the partners' collective will, consistent with Clauses 11(b) and 17. The Defendant did not seek approval to depart from those instructions; she informed partners only after closing Joint MBB and after re-routing funds.

In partnership law, as Fatimah Hiew Yen Won (supra) illustrates, partners are collectively the firm; unilateral deviation from agreed banking arrangements undermines that collective governance. Contractual duty to pay into "the said bank to the account of the Agency".

Clause 12(a) is explicit: all monies received "on account of the Agency" must be paid into the designated bank account of the Agency. Once ABB was identified by the partners as the replacement account, the Defendant's choice to route monies into PBB instead of ABB, in the face of clear instructions, is inconsistent with Clause 12(a) and with Clause 17's trust obligation. A trustee of partnership monies cannot unilaterally change the destination of funds merely because she prefers a different governance structure.

Good faith concerns about governance do not entitle a partner to override majority decisions or contractual obligations. A partnership is not a vessel where each crew member may seize the helm whenever they distrust the captain; it is a ship that must be steered by collective direction, not unilateral manoeuvres.

If the Defendant genuinely believed that the ABB arrangements were unsafe or prone to abuse, the proper and contractually coherent course was to convene the partners, propose safeguards, and, if necessary, vary the Agreement or banking mandate. Acting first and explaining later inverts the contractual hierarchy, undermines the discipline of majority rule, and erodes the trust that is the lifeblood of partnership relations.

On the evidence, I find that the Defendant has breached Clauses 11(b), 12(a) and 17 by:

(a) Opening and using Sole MBB contrary to majority instructions;

(b) Closing Joint MBB without prior approval; and

(c) Transferring partnership monies to PBB instead of ABB in defiance of express directions.

The fact that monies remain in PBB and have not been dissipated for personal use mitigates the gravity of the breach but does not erase it. The core wrong is disobedience of contractual and collective instructions in relation to trust monies.

In partnership terms, this is a governance breach: it undermines the agreed architecture for control of funds and, if left unchecked, would allow any licence-holding partner to substitute her own preferences for the collective will. The reliefs sought regularisation of banking arrangements and injunctive restraints are therefore a proportionate response to restore compliance with the Agreement and with the trust obligations it embodies. Originating Summons procedure

The Defendant contends that there are substantial disputes of fact about the Plaintiff's appointment as Managing Partner, ENE's banking requirements, the Plaintiff's own alleged breaches and broader governance concerns such that the matter ought not to proceed by originating summons and should be converted to writ under O 28 r 8 ROC 2012.

The Plaintiff, relying on Bandar Eco-Setia and United 1Borneo Hypermall, characterises the real controversy as a contractual one: whether the Defendant's admitted acts, viewed against the text of Clauses 11(b), 12(a) and 17 and the partners' written instructions, amount to breach. On that analysis, peripheral factual skirmishes about motive, prudence or internal politics do not preclude determination on affidavit, because the operative facts are largely common ground.

In United 1Borneo Hypermall Sdn Bhd v North East Destiny Sdn Bhd [2020] MLJU 1258, the High Court at paragraphs 80 and 81 provide as follows: [80] In view of the ruling of the Federal Court in Bandar Eco-Setia Sdn Bhd v Angelane Eng [2016] 1 MLJ 764 (FC), it therefore follows that the resolution of conflicting evidence relating to disputed facts in respect of whether the said Datuk Raymond Wong had indeed given his approval and consent, whether he had the authority to do so, whether the said Marcellinus bin E. Stanis had assisted the Defendant's contractor in the installation of the solar panels and the accessory equipment and conducted in the way as alleged by the Defendant are not necessary in the determination of the principal question whether the Defendant is in breach of the Mutual Covenants by the installation of these solar panels and the accessory equipment thereto on the premises concerned. [81] Therefore, there is no sufficient reason to order the proceedings to continue as if begun by writ as the principal question can be determined based on the crucial question as determined based on the ruling of the Federal Court in Bandar Eco-Setia Sdn Bhd v Angelane Eng [2016] 1 MLJ 764 (FC).”

I agree with the Plaintiff. The material facts relevant to breach the existence and nature of the various bank accounts, the Defendant's opening and closing of them, the quantum and destination of the transfers, and the content of the Agency's letters are not genuinely in dispute.

What is contested is the Defendant's justification and the legal characterisation of those acts. That is a paradigm question of construction and application of contractual terms, suitable for resolution on OS, as recognised in Bandar Eco-Setia and United 1Borneo Hypermall (supra), where the courts declined to insist on a writ merely because parties advanced competing narratives around essentially undisputed events.

In these circumstances, there is no "sufficient reason" within the meaning of O28r8ROC2012 to direct a conversion to writ. To insist on pleadings, discovery and oral evidence where the determinative facts are admitted would elevate form over substance and delay the vindication of clear contractual rights. The originating summons procedure is appropriate and proportionate for the declaratory and injunctive reliefs sought. Injunctive relief

The Plaintiff seeks, in substance, mandatory orders compelling the Defendant to:

(i) transfer RM31,084.32 and all future ENE commissions into ABB;

These are not merely preservatory measures; they require the Defendant to undo what has been done and to re-route the financial lifeblood of the Agency in a particular direction.

The Defendant is right to remind the Court, through T.R. Hamzah & Yeang Sdn Bhd v. Lazar Sdn Bhd [1985] CLJ (Rep) 312, whereby the court held: The grant of a mandatory injunction is entirely discretionary. Every case must depend essentially upon its own particular circumstances. It is a jurisdiction to be exercised sparingly and with caution but in a proper case unhesitatingly.

In La Kaffa International Co Ltd v Loob Holding Sdn Bhd [2018] MLJU 703, the Court of Appeal held, [32] It is trite that the threshold to grant interlocutory mandatory injunction is very high. It is usually granted when the plaintiff has an unusual strong and clear case against the defendant. The starting point to consider when injunction are sought is first Order 29 of RC 2012 which is to be read with Specific Relief Act 1950 (SRA 1950) and case laws on this area of law. Section 53 of SRA 1950 states: "Mandatory injunctions 53. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts." [33] The threshold to satisfy the above section may be quite straight forward between contracting parties, more so when the dispute complained of has been placed before the arbitral proceedings and the injunction is sought to sustain the integrity of the arbitral proceedings as well as the rule of law of the court's jurisdiction itself. Section 53 itself clearly requires the court to consider granting a mandatory injunction when it relates to breach of obligation unless section 54 is made applicable to the facts of the case. The said section 54 sets out when an injunction cannot be granted. [34] It is trite that mandatory injunctions are orders of court which command the respondents to do some positive act or particular thing. In Westminster Brymbo Coal & Coke Co v Clayton (1867) Ch. 476, Megarry J observed: "There are important differences between prohibitory and mandatory injunction. By granting prohibitory injunction the court does no more than prevent for the future the continuance or repetition of the conduct of which the plaintiff complains. The injunction does not attempt to deal with what has happened in the past; that is left for the trial, to be dealt with by damages or otherwise... On the other hand, a mandatory injunction tends at least in part to look to the past, in that it is often a means of undoing what has already been done, so far as that is possible. Furthermore, whereas a prohibitory injunction merely requires abstention from acting, a mandatory injunction requires the taking of positive steps, and may require the dismantling or destruction of something already erected or constructed. This will result in a consequent waste of time, money and materials if it is ultimately established that the defendant was entitled to retain the erection." [35] It is important to note that the court has granted mandatory injunctions in cases where the defendant knowingly steals a march over the plaintiff. [See Wrotham Park Estate v Parkside Homes (1974) 2 All 321]. Generally the court will not grant a mandatory injunction where it will require continuous supervision. The principles governing the grant of mandatory injunction was set out by Lord Upjohn in Redland Bricks Ltd v Morris [1970] AC 652 , where His Lordship observed: "The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be 'as of course'. Every case must depend essentially on its own particular circumstances. Any general principles for its application can only be laid down in the most general terms:

(a) A mandatory injunction can only be granted where the plaintiff shows very strong probability on the facts that grave damage will accrue to him in the future...

(b) Damages will not be a sufficient or adequate remedy if such damage does happen. This is only the application of a general principle of equity La Kaffa International Co Ltd v Loob Holding Sdn Bhd and another appeal [2018] MLJU 703

(c) Unlike the case where a negative injunction is granted to prevent the continuance or recurrence of a wrongful act the question of the cost to the defendant to do work to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account:

(i) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him, or has tried to evade the jurisdiction of the court, or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff.

(d) If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions."

Thus, based on the above authorities, it is crystal clear that mandatory injunction is an exceptional remedy. The authorities emphasise that such relief is granted only in rare and compelling circumstances, where the Plaintiff's case is unusually strong, the facts are clear, and the justice of the situation plainly requires immediate positive intervention.

Courts exercise caution where damages are an adequate remedy, where the order would materially disturb the existing status quo, or where the relief sought would draw the Court into ongoing supervision of the parties' commercial operations.

On the present facts, the Plaintiff's case on breach is cogent and, in many respects, compelling. The Defendant has acted contrary to clear contractual instructions and trust obligations. The real question, however, is not whether there has been a breach that has been sufficiently established but whether the particular form of mandatory relief sought is appropriate. Several factors weigh against granting the full suite of mandatory orders now sought.

First, as to status quo and operational arrangements: PBB currently holds the monies and operates with multiple signatories, including the Plaintiff. To compel immediate closure of PBB or an immediate transfer of all funds to ABB would, in effect, restructure the Agency's financial architecture before the parties have fully ventilated their wider governance grievances.

Secondly, as to continuing supervision: an order requiring the Defendant to transfer all future commissions into ABB "until dissolution of the partnership" would invite the Court into the engine room of the partnership's day-to-day operations. La Kaffa (supra) cautions against injunctions that require the Court to stand as a perpetual overseer of commercial arrangements.

Thirdly, as to damages and alternative remedies: the Plaintiff's immediate financial prejudice is quantifiable and compensable. The risk of dissipation is low; the monies are traceable and remain in a partnership-related account, not in some opaque personal vehicle.

That said, equity does not turn a blind eye to continuing breaches simply because the money has not yet gone missing. The Defendant's departures from the agreed framework are real and ongoing. Partners are entitled to expect that trust monies will be handled in accordance with the contract they signed, not according to unilateral improvisation.

The Court's task is therefore to fashion a response that is firm but measured one that protects the partnership's financial integrity without over-engineering its internal machinery.

In my view, the appropriate balance is achieved through a combination of declaratory and prohibitory relief, together with a structured opportunity for the partners to regularise their own arrangements.

It is therefore suitable to:

(i) declare that the Defendant's diversion of monies to Sole MBB and PBB, contrary to majority instructions, amounts to a breach of the Agreement;

These orders serve several connected purposes. They safeguard the partnership's financial integrity by freezing the position and preventing unilateral dissipation. They uphold the contractual framework and the principle of majority decision-making by requiring written majority approval for any use of funds.

They avoid simply shifting unilateral control from the Defendant to the Plaintiff; the Court does not replace one unilateral actor with another. And they minimise the need for ongoing judicial supervision by returning long-term decisions to the partners themselves, acting through their agreed governance mechanisms.

At this stage, targeted declaratory and prohibitory relief of the kind outlined above strikes the right balance between enforcing contractual rights, preserving trust monies, and giving the partnership a fair opportunity to reset its internal arrangements. Conclusion

This dispute is, at its core, not about legal technicalities but about trust within a small partnership. The Defendant's concerns about governance and checks and balances are not illegitimate; they are, in fact, part of healthy partnership discourse.

But the law requires that such concerns be addressed through the mechanisms the partners themselves agreed upon not by unilateral action with partnership monies.

The Plaintiff, as Managing Partner, has rightly sought to restore adherence to the Agreement. The orders made today are intended not to punish either side, but to steady the Agency's financial compass and return decision-making to the collective table where it belongs.

The partners now have an opportunity indeed a responsibility to sit together, confront the practical realities of their business, and craft a banking and governance arrangement that honours both the letter and spirit of their Agreement. Courts can declare rights and restrain breaches, but the long-term health of this partnership will depend on whether its members choose cooperation over suspicion. Orders

For the reasons above, I make the following orders: Declaration of partnership and obligations . It is declared that a valid partnership exists between the Plaintiff and Defendant under the Partnership Agreement dated 26.04.2016, and that the Defendant is bound by all its terms, including Clauses 11(b), 12(a) and 17. Declaration of breach It is declared that the Defendant has breached Clauses 11(b), 12(a) and 17 of the agreement by:

(a) Opening and utilising the Sole MBB account to receive ENE commissions contrary to the instructions of the majority partners;

(b) Closing the Joint MBB account without prior approval of the majority partners and transferring RM520.56 to PBB instead of ABB; and

(c) Transferring RM31,084.32 from Sole MBB to PBB instead of ABB in defiance of the Agency's letter dated 16.03.2026. Preservation of monies o The Defendant is restrained, whether by herself or through others, from withdrawing, transferring or otherwise dealing with:

(a) The sum of RM31,084.32 and any other Agency monies presently standing to the credit of PBB; and

(b) Any future ENE commission monies received into any account in her name, save for bona fide Agency expenses authorised in writing by at least a majority of partners (including the Plaintiff) and in accordance with the Agreement. Interim governance direction o The partners of the Agency shall, within 60 days of this judgment, convene a meeting and pass a resolution to regularise the Agency's banking arrangements, including the operation of ABB and any other account, in compliance with Clauses 4,8,11,12 and 17 of the Agreement. o Liberty to apply is granted to either party for further directions if the resolution cannot be achieved or if compliance issues arise. Costs

Costs of the OS in the sum of RM8,000.00 are awarded to the Plaintiff, subject to 4% allocatur fee. I hereby order so. Date: 13.7.2026 NIXON ANAK KENNEDY KUMBONG Judicial Commissioner High Court of Malaya Kuala Lumpur PARTIES For the Applicant: Solicitor: Nurul Athirah / Loh Yi Qing Messrs Qing Chambers MK3-25-12, Arte Mont Kiara @ KL Metropolis, Jalan Sultan Haji Ahmad Shah, Kompleks Kerajaan, 50480 Kuala Lumpur For the Respondent: Solicitor: Wee Su Lin / Amir Khan Messrs Yusuf Khan & Fong No. 97B, Jalan Gasing, 46000 Petaling Jaya, Selangor