Yap Teak Sing v Lai Ming Chun @ Lai Poh Lin (WA-11ANCvC-58-09/2024)

The learned Magistrate had allowed the application of the Defendant to set aside the ex parte leave for a committal proceeding applied for by the Plaintiff against the 1st Defendant.

In deciding that the 1st Defendant had successfully set aside the ex parte application for leave for the committal proceeding the learned Magistrate decided Plaintiff’s application for a committal proceeding was therefore rendered academic. 24/06/2025 11:54:19

The Plaintiff now appeals against both this decision of the learned Magistrate. Brief facts

The dispute between the Plaintiff and the Defendant arose as a result of a leakage suffered by the Plaintiff at his condominium at N- 17-3A, Suria Stonor Condominium (Plaintiff’s property) which was believed to be caused by the 1st Defendant’s condominium at N-21- 3A, Suria Stonor Condominium (Defendant’s property).

This dispute was referred to the Tribunal set up under the Strata Management Act 2013. The 1st Defendant was directed to rectify this leakage suffered at the Plaintiff’s property within 30 days of the Tribunal’s decision.

The Plaintiff applied by an ex parte application for leave under Order 52 Rules of Court 2012 (“the rules”) to initiate a committal proceeding against the 1st Defendant for failing to abide by the Tribunal’s decision to rectify the leak.

The relevant provision of Order 52 of the Rules states as follows:

Application to Court (O. 52 r. 3)

No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

The learned Magistrate allowed the ex parte application of the Plaintiff for leave to apply for the committal proceeding. The effect of allowing leave the effect is as stipulated in Order 52 of the Rules as follows:

Application for order after leave to apply granted (O. 52 r. 4)

When leave has been granted under rule 3 to apply for an order of committal, the application for the order must be made by notice of application to the Court, and, unless the Court granting leave has otherwise directed, there must be at least eight clear days between the service of the notice of application and the day named therein for the hearing.

Unless within fourteen days after such leave was granted the notice of application is filed, the leave shall lapse.

Subject to paragraph (4), the notice, accompanied by a copy of the statement and affidavit in support of the application for leave under rule 3 and the order granting such leave, must be served personally on the person sought to be committed.

Without prejudice to the powers of the Court or Judge under Order 62, rule 5, the Court or Judge may dispense with service of the notice under this rule if it or he thinks it just to do so.

The above provision was duly followed by the Plaintiff to serve to the 1st Defendant with the committal notice as stated in the above provision. The 1st Defendant on his part applied to set aside the ex parte leave to commence committal proceeding granted to the Plaintiff based on various grounds.

The learned Magistrate chose to hear the 1st Defendants application first before hearing the Plaintiff’s application for the committal order. After listening to arguments of both sides the learned Magistrate allowed the 1st Defendant’s application to set aside the ex parte leave application and decided that the Plaintiff’s application for committal order was rendered academic. The learned magistrate’s decision

One of the main grounds in allowing the 1st Defendant’s application to set aside the leave obtained by the Plaintiff was the Plaintiff’s failure in disclosing material facts which had occurred after the decision of the Tribunal, when applying for leave.

The facts not disclosed by the Plaintiff included that an independent investigation conducted by experts had confirmed that the leak originating from the Defendant’s property had been rectified by the Defendant and subsequent inspection detected no further leakage in the Defendant’s property.

The Plaintiff further failed to disclose that the High Court hearing civil appeal WA-11BNCVC13-06/2021 had held that the leakage issue had been resolved after being shown the repair receipts to rectify the leakage.

The learned Magistrate also viewed committal proceeding should be applied as a last avenue after all other legal recourse has been exhausted. The law

The learned Magistrate referred to the case of Tan Sri G Darshan Singh V Tetuan Azam Lim & Pang [2013] 1 CLJ 1060 which emphasises that a complete factual picture should be disclosed in a committal proceeding so as to ensure a fair and just decision.

The learned Magistrate also referred to the cases of Tan Sri Dato Dr Rozali Ismail & Ors V Lim Pang Cheong & Ors [2012] 2 CLJ 849 and Dato Ibrahim Ali V Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176 which highlights the fact the gravity of committal proceeding necessitates the strict adherence to procedural requirements.

Apart from agreeing with the entire decision of the learned Magistrate in allowing the 1st Defendants application to set aside the leave to commence committal proceeding, this Court views the Rules of Court emphasises the need for strict compliance of the Rules which includes disclosing all material facts. This is clear from

Application to Court (O. 52 r. 3)

No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

The Court also agrees with the learned Magistrate that once leave is set aside the application for the committal order becomes redundant and cannot be proceeded with.

In the upshot the Court dismissed both the appeals by the Plaintiff against the learned Magistrate’s decision with a cost of RM3,000. Dated: 23.6.2025 SGD DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Dinesh Nandrajog Tetuan Nandrajog 3-9-9, Tower 3, UOA Business Park, No.1 Jalan Pengaturcara U1/51a, Seksyen U1, 40150 Shah Alam, Selangor. For the Defendant: Nama Peguamcara: Vishal Kumar Tetuan James Monteiro Unit D4-6-1, Solaris Dutamas No.1

Tan Sri G Darshan Singh V Tetuan Azam Lim & Pang [2013] 1 CLJ 1060;

Tan Sri Dato Dr Rozali Ismail & Ors V Lim Pang Cheong & Ors [2012] 2 CLJ 849 and Dato Ibrahim Ali V Datuk Seri Anwar Ibrahim [2015] 1 CLJ 176.