Zen Courts Sdn Bhd v Ferrier Hodgson MH Sdn Bhd (WA-22NCvC-285-04/2021)

WA-22NCvC-285-04/2021 DALAM PERKARA MAHKAMAH TINGGI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN SIVIL) GUAMAN SIVIL NO.: WA-22NCVC-285-04/2021 ANTARA ZEN COURTS SDN BHD (No. Syarikat: 855077-U) ... PLAINTIF DAN

1. FERRIER HODGSON MH SDN BHD (No. Syarikat: 459793-W)

2. ANDREW HENG (No. K/P: 750225-71-5051) DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Enclosure 170 INTRODUCTION [1] The Defendant raised a preliminary objection under Enclosure 170 before the hearing of the Defendant's Enclosure 125 and the Plaintiff's Enclosure 138 on 24 April 2026. Enclosure 170 was dismissed with cost at RM3,000.00 subject to fee allocator. My grounds as below. BACKGROUND FACTS [2] Enclosure 125 and Enclosure 138 were filed pursuant to Order 33 rule 2 of the Rules of Court 2012 (ROC 2012), on the issue whether the Defendant was a court-appointed expert under Order 40 of the ROC 2012. [3] Both Enclosures 125 and 138 were initially fixed to be heard on 17 October 2025. The Defendant raised a preliminary objection vide a letter dated 15 October 2025 contending that the Plaintiff had failed to obtain the leave of Court to commence the present action against the Defendant. [4] The contents of Enclosure 170 are reproduced here for ease of reference: "We refer to the above matter and parties' respective applications filed pursuant to Order 33 rule 2 of the Rules of Court 2012 (ie Enclosures 125 and 138, respectively), which are fixed for hearing on 17 October 2025.

2. We hereby give you notice that the Defendant will be raising a preliminary objection during the hearing of Enclosures 125 and 138, namely that the Plaintiff has failed to obtain leave of court to commence the present action against the Defendant, and therefore, this Honourable Court lacks the jurisdiction to hear the present proceedings.

3. In this regard, the Defendant will be relying on the decision of Ho Hau Wong & Ors v Tan Kim Chuan & Ors [2018] 1 LNS 1000 which provides that leave is required for an action to be brought against a court expert.

4. In light of the above, the Defendant will pray for Enclosure 1 to be dismissed with costs." ANALYSIS AND COURT'S FINDING Status of the Defendant as a Court Expert [5] The learned counsel for the Defendant submitted that the Defendant acted as a court-appointed expert by virtue of a court order, the original oppression suit (Kuala Lumpur High Court Petition No. D-26NCC-42 2011 dated 27 March 2012) ("Oppression Suit"). It is submitted that the Defendant is effectively the officer of the court and prior judicial leave is required for a legal action against the officer of the court, relying on the case of Ho Hau Wong & Ors v Tan Kim Chuan & Ors (2018) 1 LNS 1000. It was submitted that the Defendant as court officer has witness immunity and should not be held liable for the Plaintiff's claim of damages against the Defendant. [6] Conversely the learned counsel for the Plaintiff submitted that the Defendant is not a court-appointed expert and therefore do not require leave of Court. It was submitted that the Defendant was appointed as an independent valuer of the shares in the Oppression Suit. The counsel further submitted that there has been an inordinate delay by the Defendant in raising their preliminary objection. [7] I viewed that the Defendant was not a court-appointed expert, briefly for the following reasons. [8] The High Court Order ("First Order") in the Oppression Suit did not expressly appoint the Defendant as a court expert. Based on the judgment (Enclosure 129), it is stated that: "... although an independent valuer was to be appointed to determine the NTA of JV Co, the final value of the buy-out shares was to be determined by the court. Accordingly, the role of Ferrier Hodgson, the original valuer, was to advise the court on the appropriate buy-out price. ..." [9] Based on the Statement of Claim of the Plaintiff's, the Defendant's appointment was the result of a mutual agreement between the Plaintiff and Ho Hup Construction Company Berhad (a public listed company which held 70% shares in Bukit Jalil Development Sdn Bhd and 30% held by the Plaintiff) ("Ho Hup") as independent valuer (paragraph 9 of the Statement of Claim), and not a court's nomination. This was following the relief granted in the First Order for the appointment of independent valuer to be mutually agreed failing which, either party is at liberty to apply to court to appoint a valuer. [10] Following the First Order, the Plaintiff and Ho Hup mutually appointed the Defendant as an independent valuer. The Defendant without the Plaintiff's consent, engaged a registered land valuer, Henry Butcher Malaysia Sdn Bhd to conduct a valuation exercise and advise the Defendant on the market value of a land as at 27 March 2012 (paragraph 11, Statement of Claim). There were Terms of Engagement entered between the Defendant and the Bukit Jalil Development Sdn Bhd (for the purpose of a buy-out exercise) (Enclosure 63, paragraph 5) to which the Defendant is not a court-appointed expert. [11] In the instant case, the High Court did not invoke Order 40 of the ROC 2012 to appoint the Defendant as court-appointed expert. Order 40 of the ROC 2012 clearly stated that the court may, on its own motion or on the application of any party to the suit, appoint a court expert. Their duty of a court expert is to inquire and report upon any question of fact or opinion. The evidence frok expert witnesses should not only be independent but should also be seen to be independent: U Television Sdn Bhd & Anor Comintel Sdn Bhd (2017) 6 AMR 292, FC. [12] Following Order 42 rule 2 of the ROC 2012, the court expert "shall send his report to the Court" to which was not done by the Defendant as it was engaged by Bukit Jalil Development Sdn Bhd and its final valuation report was issued to Bukit Jalil Development Sdn Bhd. [13] Following Order 40 rule 5 of the ROC 2012, the remuneration of the court expert "shall be fixed by the Court and shall include a fee for his report and a proper sum for each day during which he is required to be present either tin Court or before an examine" to which is not the case here. Therefore, there was no delegation of judicial or quasi-judicial authority to the Defendant by the Court. [14] The case of Ho Hau Wong (supra) can be distinguished from the instant case, as in the Ho Hau Wong (supra), all parties agreed that KPMG be appointed as the court-appointed expert and it was not disputed in that case that KPMG's appointment was made by the court pursuant to Order 40 of ROC 2012. Inordinate Delay [15] It is of my view that the Defendant's Preliminary Objection is tainted by undue delay and should be rejected ab initio. The Plaintiff had commenced the action in April 2021 and no preliminary objection was raised or asserted that leave of court was required for the Plaintiff to commence this action against the Defendant as a court-appointed expert. I have to agree with the Plaintiff's reasoning that the case of Ho Hau Wong (supra) is a 2018 case relied by the Defendant and yet the Defendant did not raise the preliminary objection in 2021. Further, there was a striking out application by the Defendant in May 2021 and the Defendant failed to raise its preliminary objection and jurisdictional challenge back then. Procedural Impropriety [16] The fact that the Defendant notified the Plaintiff of the preliminary objection only two days before the scheduled hearing on 17 October 2025 when they had every opportunity to do so earlier is a manufactured afterthought. In addition, based on Rule 11.04 of the Rules and Rulings of the Bar Council of Malaysia ("Bar Council") submitted by the Plaintiff's counsel, it provides that written notice of objection be given to the other counsel within a reasonable time, which is not later than 4 clear working days before the hearing. Such good practice based on the Bar Council rules should be adhered to, to enable preparation by both parties and not either party by eliminating the element of surprise for the other counsel, for a fair disposal of the proceedings. [17] I also viewed that a preliminary objection shall not be allowed unless there has been a substantial miscarriage of justice: Pentadbir Tanah Johor Bahru v Tanah Sutera Development Sdn Bhd (2023) 4 MLJ 567 COA. Though the Pentadbir Tanah Johor Bahru (supra) case was in relation to procedural non-compliance, the principle on preliminary objection applies that it must not be allowed if there has been a substantial miscarriage of justice. [18] I am also of the view that the Defendant suffers no prejudice by the dismissal of the preliminary objection as they are entitled to submit on the substantive merits of their Order 33 rule 2 of the ROC 2012 application. Conclusion [19] For the reasons above, the Defendant's Preliminary Objection was dismissed with costs. Dated 24th April 2026 Interfajudain (ZALITA BINTI ZAIDAN) (JUDICIAL COMMISSIONER) (HIGH COURT CIVIL NCVC3) (HIGH COURT OF KUALA LUMPUR) (IN THE FEDERAL TERRITORY, MALAYSIA) Plaintiff's Counsel : Austen Emmanuel Pereira Matthew Ho Mern Jin Chow Chen Yie Anil Kaniamuthan Messrs Rosli Dahlan Saravana Partnership Defendant's Counsel : Sasha Ravindran, Samantha Siow San San Lim Jing Rui Messrs Cheah Teh Su Cases Referred: Ho Hau Wong & Ors v Tan Kim Chuan & Ors (2018) 1 LNS 1000 U Television Sdn Bhd & Anor Comintel Sdn Bhd (2017) 6 AMR 292, FC Pentadbir Tanah Johor Bahru v Tanah Sutera Development Sdn Bhd (2023) 4 MLJ 567 COA Act/Law Referred: Order 33 rule 2, Order 40 rule 5, Order 42 rule 2 of the Rules of Court 2012 Articles Referred: Rule 11.04 of the Rules and Rulings of the Bar Council of Malaysia