DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

DALAM WILAYAH PERSEKUTUAN, MALAYSIA

(BAHAGIAN DAGANG)
SAMAN PEMULA NO: 24 NCC-392-11 TAHUN 2012
Dalam perkara Seksyen 218(1) dan Seksyen
218(2) Akta Syarikat 1965
Dan
Dalam perkara Aturan 5 Kaedah 4 Aturan 28,
Aturan 29 dan Aturan 92 kaedah 4 KaedahKaedah Mahkamah Tinggi 2012
Dan
Dalam perkara Notis di bawah Seksyen 218
Akta Syarikat 1965 bertarikh 19.10.2012

ANTARA
RHB BANK BERHAD
(No. Syarikat: 6171 M)

...

PLAINTIF

...

DEFENDAN

DAN
NORESAH BINTI LANI
(No. K/P: 5547319)

Grounds of Decision

Azizah Nawawi JC:

The Applications
[1]

There are three applications before this court:1

(i)

an application by the Plaintiff for injunctive relief to restrain

the Defendant from presenting a winding up petition
pursuant to s. 218 of the Companies Act 1965 (Act 125)
Notice dated 19.10.2012 and to restrain Defendant from
serving and advertising the winding-up petition (enclosures
1 and 2).

(ii)

an application by the Defendant dated 28.11.2012 to set

aside the ex parte injunction on the basis that there is
non-compliance with Order 29 Rules of Court 2012 (ROC
2012) and that it constitutes an abuse of the process of the
court. (enclosure 7)

[2]

With the consent of both parties, the court proceeded to hear all
three applications together, enclosure (1) the Originating
Summons (for permanent in junction), (2) the inter parte
application for injunction and (7) the defendants application to set
aside the ex parte injunction.

The Salient Facts

[3]

The Defendant obtained a loan from the Plaintiff in 1993. The

Plaintiff was formerly known as Kwong Yi Finance Berhad and
by a Vesting Order, all rights were transferred to RHB Bank Bhd
(the Plaintiff Bank).

As security, the Defendant assigned her

rights and interest in a property known as unit No. 211, Storey

No. 3 of Building No. W, Road SS 15/8, Subang Jaya to the
Plaintiff.

[4]

In September 2005, the Defendant initiated suit D8-22-1370-2005

against the Plaintiff for declaratory prayers pertaining to the
housing loan. After a full trial, judgment was entered against the
Plaintiff with costs, on a solicitor and client basis.

[5]

An appeal by the Plaintiff against the decision of the High Court

was dismissed by the Court of Appeal on 12.9.2012, with costs of
RM15,000.00. Aggrieved by the decision of the Court of Appeal,
the Plaintiff had filed an application for leave to appeal to the
Federal Court under section 96 Courts of Judicature Act 1964
(the CJA).

[6]

At the same time, the Plaintiff had filed an application to stay the
decision of the Court of Appeal under section 44 of the CJA. The
application for stay was fixed for hearing on 12.11.2012 but was
adjourned to 6.12.2012. But parties, by consent, had agreed to
an interim stay before the Court of Appeal in the morning on
12.11.2012. In the afternoon on 12.11.2012, the Plaintiff had
secured an ex parte injunction from this court.

[7]

In the meantime, vide a letter dated 15.4.2011, Counsel for the

Defendant had demanded for payment of the costs of the trial of
the High Court, in the sum of RM89,844.70, being the amount
paid by the Defendant to her counsel, on solicitor and client basis.
Paragraph 4 said letter exhibited as NL-1 reads as follows:4.

In accordance with prayer (i) of the Judgment dated

30th September 2011, kindly be informed that we have

billed our client for the sum of RM89,844.70. Our client
3

has forwarded a cheque for the said sum. In light thereto,

kindly forward us the said sum within seven (7) days from
the date hereof.

[8]

Since the Plaintiff did not pay the solicitor and client cost of
RM89,844.70 (for the High Court trial) and the RM15,000.00 (the
appeal), the Defendant issued a Notice dated 19.10.2012 under
s. 218 of Act 125 for the payment of the costs. After the issuance
of the Notice dated 19.10.2012, the Plaintiff paid RM15,000.00
but the sum of RM89,884.70 remain outstanding.

The Plaintiffs case

[9]

It is the Plaintiffs submission that they have satisfied the

requirements of a Fortuna injunction and relied on the Court of
Appeal

decision

in

Mobikom

Sdn

Bhd

v.

Inmiss

Communications Sdn Bhd [2007] 3 CLJ 295 case. In this case,

the Court held that a Fortuna injunction is used to restrain the
presentation of a winding up petition where its presentation would
amount to an abuse of the process of the court. There are two
"branches" to the Fortuna principles, namely:

(i)

the presentation of the petition may produce irreparable

damage to the company and where the proposed
petition has no chance of success; or

(ii) a petitioner proposing to present a petition has chosen

to assert a disputed claim, by a procedure which might

produce irreparable damage to the company rather

than by a suitable alternative procedure.

[10]

The Plaintiff claims that since the costs was granted on a solicitor
and client basis, it must be taxed under section 126 of the Legal
Profession Act 1976. Since the costs have not been taxed, the
amount is yet to be ascertained, and therefore there is no debt
due and owing.

[11]

The Plaintiff also submits that it is an established bank nationwide

and that great damage may be done to it with the presentation of
the winding up petition.

The Defendants case

[12]

The Defendant submitted on two (2) issues:

(i)

that the ex parte injunction should not have been

granted in the first place for non compliance with
Order 29 ROC 2012 and that it constitutes an abuse of
process; and

(ii) that the application for a permanent injunction is an

abuse of the process of the court, as the sum of
RM89,884.70 has become undisputed amount because
the Plaintiff have failed to get the costs taxed under
section 126 of the Legal profession Act. Since the
amount is undisputed, the issue of causing irreparable
damage is of no consequence.
5

The Findings of the Court

(i)
[13]

application to set aside the ex parte injunction

The Defendant submits that the ex parte injunction should be set
aside for non-compliance with the ROC 2012. The first complaint
of the Defendant is that there is non-compliance Order 29 r 1(2)
ROC 2012, which specifies that an application under Order 29
must be supported by an affidavit.

It is the Defendants

contention that the Plaintiffs affidavit in support only makes

reference to the Originating Summons, not the application itself.
So the affidavit cannot be used for the purposes of the
application. Hence without a supporting affidavit, the application is
without the supporting facts and should have been dismissed.

[14]

On this issue however, I would agree with Counsel for the Plaintiff
that from reading the last paragraph of the Plaintiffs affidavit, the
Plaintiff did seek an order in terms of both the application and the
Originating Summons. Therefore, we can accept that the
supporting affidavit is meant to support both the application and
the Originating Summons, as the prayers in both are the same.

[15]

Next, the Defendant submits that the Plaintiff has failed to comply
with the mandatory requirements of Order 29 r 1(2A)(c ), (d), (e)
and (f), which read as follows:(2A) The affidavit in support of an application made ex
parte must contain a clear and concise statement
of
6

(a)

...

(b)

...

(c)

The facts relied on to justify the application ex

parte, including details of any notice given to
the other party or, if notice has not been
given, the reasons for not giving the notice;

(d)

Any answer by the other party (or which he is

likely to assert) to the claim or application;

(e)

Any facts which may lead the court not to

grant the application ex parte or at all;

(f)

Any similar application made to another judge,

and the order made on that application; and

(g)

[16]

...

Order 29 r 1(2A) uses the word must. On the usage of the word
must in the Rules, the Federal Court in DYMM Tunku Ibrahim
Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v
Datuk Kapten Hamzah bin Mohd Noor [2009] MLJU 401 said
this:The word must appearing in O. 6 r. 7(2A) is not
usually used in the Malaysian legislations. Normally the
word used is shall. So in this case when the word
must is used, the intention is to fully ensure it is
complied with and no discretion is to be given as far as
the compliance with the prerequisites is concerned...
7

[17]

In the present case, the Defendant submits that the Plaintiff has
failed to comply with the mandatory requirement of giving details
of any notice given to the other party (the Defendant herein) or, if
notice has not been given, the reasons for not giving the notice in
the supporting affidavit (O. 29 r 1(2A)(c )). The Defendant says
that both parties were in the Court of Appeal in the morning, yet
the Plaintiff did not inform them of the ex parte application fixed in
the afternoon on the very same day. In University of Malaya
Medical Centre v Choo Chee Kong [2008] 5 CLJ 295, Justice
Hishamudin Mohd Yunus, in an application to set to set aside an
ex parte injunction, has held that the legal burden is on the
Plaintiff to satisfy the court as to why it failed to give notice to the
defendants. On this issue, I find that vide two letters dated
23.10.2012 and 2.11.2012, the Plaintiff had informed the
Defendant that they will take legal action, including an injunction
if there is

no written confirmation that the Defendant will not

present the winding up petition. As such, I find that the Plaintiff

had complied with Order 19 r 1 (2A)(c).

[18]

For non compliance with Order 29 r 2A (d)(e) and (f), the

Defendant submit that the Plaintiff had failed to show facts that
may lead court not to grant ex parte injunction, namely that they
fail to disclose the stay application as well as the interim stay as
agreed by parties before the Court of Appeal in the morning on
12.11.2012. Further, there is a failure of full and frank disclosure
pertaining to the letter of the Defendant dated 5/11/2012, in reply
to the Plaintiffs letter dated 2.11.2012.

[19]

At page 147 of plaintiffs affidavit (letter dated 2.11.2012), they

gave a dateline 5.11.2012 before 4.30pm for the Defendant to
respond. The Defendant responded, in a letter dated 5.11.2012
(see exhibit NL-2). In the said letter, the Defendant wrote this:(b) In your letter you have not adduced any evidence
evidencing that your client has in fact forwarded to
you as stakeholder the sum of RM89,844.70.

(c) Alternative to paragraph 2 above, our client will be

willing to not proceed with the winding up petition if
the said cost of RM89,844.70 is forwarded to us as
stakeholder pending your client application for leave
to appeal to the Federal Court.

(d) Please be informed that there is already an interim

stay pending your clients application for a stay of
execution. As such, your clients threat for an
application for injunction and cost there from at this
stage is baseless and in the event your client
proceeds to do so, your client shall be liable for all
costs arising from such frivolous application..

[20]

In Castle Fitness Consultancy Pte Ltd v Manz [1990] 1 MLJ

141, Coomaraswamy J said at page 144:Hence, if on an ex parte application, the Plaintiff does
not make full and sufficient disclosure, his application
will, in the presence of special circumstances, be
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dismissed. This is a rule based on public policy. It is

designed to prevent abuse of the procedure of court by
a person who has a special advantage in view of the
absence of the other party.

The court should deal with great strictness and severity

with persons who apply for ex parte injunctions. A party
applying is bound to put the court in possession of all
facts in order to enable it to judge whether the defendant
ought to be put to what may be described as a very
serious sanction, ie a temporary injunction.

[21]

I take note that the Defendant, in the letter dated 5.11.2012, has
responded to the Plaintiffs letter dated 2.11.2012, within the
stipulated time, that is before 4.30pm on 5.11.2012. I also take
note that the application for an ex parte injunction was filed about
24 hours later, on 6.11.2012 at 5.57pm. Therefore, there was a
window of opportunity for the Plaintiff to exhibit the Defendants
letter dated 5.11.2012, but they failed to do so. If the letter had
been brought to the attention of the court, there is a possibility
that the court may not grant the ex parte injunction, but may
instead require the matter to be heard on an inter parte basis, as
the parties had already agreed to an interim stay until 6.12.2012.
There is also an offer by the Defendant that they will not proceed
to present the winding up petition if the amount of RM89, 844.00
is remitted to the Defendants counsel as a stakeholder. All these
information should have been revealed to this court, and failure to
do so constitutes a serious breach of the Rules and the ex parte
order must be set aside. The ex parte injunction is hereby set
10

aside for non-compliance of Order 29 r 1(2A)(d)(e) and (f) of the

ROC 2012.

(ii)
[22]

the substantive application

On the substantive application, the crux of the matter is whether
the amount of cost, on Solicitor and client basis, of RM89,844.70
is due and owing. The Plaintiff says that unless the cost is taxed,
it remains at large and is not due and payable.

[23]

On the other hand, the Defendant says that since the costs
ordered by the court is on solicitor and client basis, the Defendant
had paid the amount of RM89,844.70 to her counsel, and is now
seeking reimbursement of the same amount from the Plaintiff.
Vide a letter dated 5.4.2011, the Counsel for the Defendant
issued a final reminder to the Plaintiff to pay the RM89,844.70 as
costs.

As to whether the amount should go for taxation, the

Defendant says that if the Plaintiff is not happy with the amount,
they can apply to have it taxed pursuant to section 126 of the LPA
1976.

[24]

Section 126 LPA 1976 was considered by Justice Low Hop Bing
in Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong &
Teh Hong Jet [2006] 7 CLJ 541. At page 545, Justice Low held
that a party chargeable with the bill of cost must apply for taxation
within 6 months from the delivery of the bill.

[25]

In the present case, the Defendant delivered their bill of RM89,

844.70 to the Plaintiff vide a letter dated 5.4.2011. This is the
11

final reminder to the Plaintiff to pay the costs, as there was no

response to its earlier demand in a letter dated 14.3.2011. But
the Plaintiff did not apply to have the said bill taxed within 6
months. Under section 126 of the LPA 1976, the onus is on the
Plaintiff to have the said bill taxed, if they are not happy with the
amount. As such, applying the case of Technointan Holding
(supra), I am of the considered opinion that the Plaintiff cannot
challenge the bill now, as they have lost the opportunity to do so
within 6 months. It is now more than 1 year when the Plaintiff
was presented with the bill to pay. It is too late in the day for the
Plaintiff to say that the amount of costs remain at large. It is my
considered opinion that the amount of RM RM89,844.70 is a valid
and an enforceable sum.

[26]

Since the amount of RM89, 844.70 is a valid and an enforceable

sum, I am of the considered opinion that the 1st branch of the
Fortuna injunction has not been satisfied. As such the issue of
causing irreparable damage to the company is not relevant. In
Pacific & Orient Insurance Co Bhd v Muniammah Muniandy
[2011] 1 CLJ 947, in an application for a fortuna injunction the
Court of Appeal said this:[27]

This principle is not applicable to the present

case. The respondent herein had obtained a valid and

enforceable judgment against the insured as well as the
insurer (the appellant). The intended petition if filed is
not bound to fail. He has a good chance to succeed.
Therefore whether or not it causes irreparable damage
is of no consequence. Thus the injunction applied for by
12

the appellant in the present case, cannot be granted by

the court under this principle.

[27]

In the circumstances, I am dismissing this application (encl. 2) by

the plaintiff for an interlocutory injunction and enclosure (1), the

originating summons for the permanent injunction. The ex parte
order granted by this court on 12.11.2012 is hereby set aside
and damages are to be assessed by the SAR.

Costs of RM

(15,000.00) to be paid by the plaintiff to the defendant within one

month from the date of this order.

(AZIZAH HAJI NAWAWI)

JUDICIAL COMMISSIONER
HIGH COURT
(Commercial Division)
KUALA LUMPUR

Date: 1 February 2013

PLAINTIFF:

Annou Xavier/W L Lee

Messrs Azri Lee Swee Seng & Co.

DEFENDANT:

Jennifer Chandran/ W Y Lee/Mohamed Danial

Messrs Vaasan Chan & Chandran

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