IN THE COURT OF APPEAL OF MALAYSIA
CIVIL APPEAL NO.: P-02(IM)-3043-12/2011
1. YEOH TAI CHUAN
2. NICHOLIN IMELDA TAN SU LIN …APPELLANTS
TAN CHONG KEAN .RESPONDENT
[Dalam perkara Mahkamah Tinggi Malaya di Pulau Pinang Guaman A Sivil No. 22-552-2009 Between
Tan Chong Kean … Plaintiff
1. Yeoh Tai Chuan
2. Nicholin Imelda Tan Sui Lin … Defendants]
1. LINTON ALBERT, JCA
2. MOHTARUDIN BIN BAKI, JCA
3. MOHAMAD ARIFF BIN MD YUSOF, JCA
GROUNDS OF JUDGMENT
 This was an appeal against the decision of the learned High Court Judge in dismissing the appellants’ application to set aside an ex-parte order dated 8.8.2011, for leave to issue committal proceedings.
 On 26.9.2012, we heard the submissions by both parties and having perused the record of appeal in its entirety, it was our unanimous decision that the appeal be allowed for the reasons we set out below.
 The appellants are solicitors practising under the name and style of Messrs. T.C.Yeoh and at the material times the appellants were solicitors for the respondent.
 The respondent persuaded the appellants to purchase a shop lot from a project known as Pan Palace Plaza developed by Bukit Gambier Land Sdn Bhd (hereinafter referred as ‘Bukit Gambier’). The respondent allegedly represented that he was the beneficial owner of the Bukit Gambier.
 The appellants made an arrangement with the respondent that 10% deposit of the balance purchase price that is payable upon signing of the sale and purchase agreement would be set off from the professional fees owed by the respondent to the appellants. The
arrangement was reduced in writing by letter dated 12.5.2004. On 1.10.2004, the appellants entered into a sale and purchase agreement with Bukit Gambier for a purchase price of RM605,000.00.
 The same approach was taken with regards to the 2nd progressive payment. The loan for the amount RM484,000.00 (80% of
RM605,000.00) from the financier, Malayan Banking Berhad, was granted to the appellants and was fully disbursed.
 Subsequently, Bukit Gambier claimed that 20% deposit was not paid and sued the appellants for the balance sum of RM121,000.00 vide civil suit no.52-3367-2008 at the Georgetown Sessions Court. The appellants contended that the amount had been satisfied by way of setoff. The appellants made a counterclaim for the amount of RM62,050.00 as the unpaid professional fees, and commenced a third party proceedings against the respondent for contribution and/or indemnity on the ground that the respondent had beneficial interest to the shares in Bukit Gambier.
 The Sessions Court granted the order for the third party proceeding and the respondent’s appeal to the Georgetown High Court was dismissed on 30.6.2010. On 12.8.2010, the common bundle of agreed documents (including 3 trust deeds) were filed at the Sessions Court.
 On 20.8.2009, the respondent filed a writ action at the Georgetown High Court vide civil suit 22-552-2009 and proceeded with an application by way of summons in chambers for an interim injunction.
 On 1.12.2010, the High Court granted the interim injunction in favour of the respondent. For ease of reference, the relevant terms of the interim injunction set out as follows:
“…MAKA ADALAH DENGAN INI DIPERINTAHKAN bahawa permohonan pihak plaintif iaitu Saman Dalam Kamar (Lampiran 2) untuk:
(1) Suatu injunksi untuk menghalang defendan-defendan samada secara sendirinya atau menerusi pekerja atau ejennya atau salah satu daripada mereka dari melakukan perbuatan-perbuatan berikut atau salah satu daripadanya iaitu:-
a. Menggunakan atau mendedahkan apa-apa maklumat sulit diberi dalam hubungan peguam-anakguam dan/atau dalam hubungan lazin pekerjaannya sebagai peguamcara kepada plaintiff (in the course of employment), iaitu khasnya dalam kandungan:
i. . TRUST DEED bertarikh 17.5.2004 antara CHOW YU
TEK dan TAN CHONG KEAN;
ii. TRUST DEED bertarikh 17.5.2004 antara CHEONG HO KUAN dan TAN CHONG KEAN;
iii. TRUST DEED bertarikh 17.5.2004 antara LIM KIM HUAT dan TAN CHONG KEAN,
(selepas ini dirujuk sebagai Trust Deeds tersebut) kepada mana-mana pihak ketiga, dan/atau untuk digunakan di dalam prosiding guaman Mahkamah Sesyen (2) Pulau Pinang Saman No.52-3367-2008…”
 The appellant appealed against the decision of the High Court in granting the interim injunction to the Court of Appeal.
 On 14.6.2011, the respondent filed an ex-parte application for leave to issue committal proceedings based upon the following grounds:
“Alasan-alasan dengan mana relief ini dipohon adalah bahawa perbuatan responden-responden/defendan-defendan tanpa mengambil apa-apa tindakan untuk menarik balik dokumen Trust Deed tersebut adalah bertujuan untuk menghalang atau memudahkan pentadbiran penghakiman dengan sengaja atau abai untuk mematuhi perintah mahkamah bertarikh 1.12.2010 selepas yang sama telah diserahkan kepada mereka melalui peguamcaranya, Tetuan Tan Beng Hong & Co. Perbuatan hina ini masih dilakukan walaupun setelah melalui notis peringatan peguamcara pemohon telah diberi kepada peguamcara defendan-defendan pada 17.2.2011.”
 Leave was granted by the High Court on 8.8.2011. The appellants then applied to set aside the ex-parte order but was dismissed by the High Court on 21.11.2011. Hence the present appeal.
 Prior to the hearing of the present appeal, the appellants had on 20.9.2012 succeeded at the Court of Appeal vide civil appeal no.P-02(im)-3515-2010, in setting aside the interim injunction.
 The appellants’ counsel contended that failure on the part of the respondent to disclose material facts had misled the learned High Court Judge in granting the ex-parte order. The material facts are:
The respondent was made a third party in the Sessions Court proceedings to indemnify and/or compensate the appellants; and
The trust deeds were already included in the common bundle of agreed documents and were filed in court prior to obtaining the injunction.
 On the other hand, the respondent’s counsel submitted the facts stated in paragraph 14(a) and 14(b) were irrelevant to the issue at hand. Regardless of when the common bundle of agreed documents was filed, the appellants were duty bound to apply to court and remove the said trust deeds from the bundle.
 With respect, we disagreed with the submissions presented by learned counsel of the respondent. The words in the injunction order were clear and unambiguous. Upon a careful reading of the terms of the injunction, it is our considered view that the dominant purpose of the injunction was to prevent the appellants from adducing evidence in relation to said trust deeds during the trial proceedings before the Sessions Court. The terms of the injunction were prohibitory. The injunction order did not contain any terms directing the removal of the trust deeds from the court’s file.
 Since the terms of the injunction order were prohibitory and not mandatory, it was vital that the respondent gave full and frank disclosure in the ex-parte application. The non-disclosure could not be treated as an innocent omission.
 The respondent’s counsel submitted that in the event that the trust deeds were not removed, the learned Sessions Court Judge could have access to the confidential information contained in the said trust deeds. Our answer to the submission is this, such documents therein do not form automatically part of the evidence of the case in question ipso facto. The documents will only become part of such evidence if it is read or referred to by either of the parties at any stage of the trial. It is not disputed that there was no reference made to the trust deeds during the trial at the Sessions Court. Therefore, the injunction order was clearly adhered to.
 By virtue of the injunction being non-existent, it cannot form the bedrock of the contempt proceeding. Based on the above reasons, we unanimously allowed the appeal, with costs of RM25,000.00 to the appellant, and the deposit refunded.
( DATUK WIRA MOHTARUDIN BIN BAKI )
Court of Appeal Malaysia Dated: 1 December 2014
Counsel for the Appellants:
Y.Bhg. Dato’ Sri Dr. Shafee Abdullah bersama Puan Nabila Zamri Tetuan Shafee & Co.,
Peguambela & Peguamcara Chambers Twenty-five,
No. 25, Jln. Tunku, Bukit Tunku,
50480 KUALA LUMPUR.
Counsel for the Respondent:
Tetuan Kumar & Co.,
Peguambela & Peguamcara No. 10, Bishop Street,
1st Floor, Suite 1,