1. Charles Koo Ho-Tung(Uk Passport No.: 761278793)2. Angela Koo Chi-Fong(Uk Passport No.: 094470670)3. Lydia Koo Chee Yung(Uk Passport No.: 510909424)(Representing Herself And The Beneficiaries Of TheEstate Of Koo Ling Ching, Deceased)4. Hsbc International Trustee Limited(Company No.: 1168)(Administrator Of The Estate Of Koo Ling Ching) … PlaintiffsAnd1. Koo Lin Shen(Nric No.: 210219-71-5269)2. Alexander Hao Nan Koo(Nric No.: 641222-71-5301)3.

  

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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)

 

ORIGINATING SUMMONS NO: 24NCC-296-08/2014

 

BETWEEN

 

1. CHARLES KOO HO-TUNG

 

(UK PASSPORT NO.: 761278793)

 

2. ANGELA KOO CHI-FONG

 

(UK PASSPORT NO.: 094470670)

 

3. LYDIA KOO CHEE YUNG

 

(UK PASSPORT NO.: 510909424) (representing herself and the beneficiaries of the Estate of Koo Ling Ching, deceased)

 

4. HSBC INTERNATIONAL TRUSTEE LIMITED (COMPANY NO.: 1168)

 

(Administrator of the estate of Koo Ling Ching)

 

AND

 

1. KOO LIN SHEN

 

(NRIC NO.: 210219-71-5269)

 

2. ALEXANDER HAO NAN KOO (NRIC NO.: 641222-71-5301)

 

3. EDWARD HAO MANG KOO (PASSPORT NO.: 453907724)

 

4. CATHERINE KOO (PASSPORT NO.: 761316906)

 

5. TEW YEW LEY

 

(NRIC NO. : 590510-01-5505)

 

… PLAINTIFFS

 

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6. MALAYSIA UNITED CHEMICAL CORPORATION SDN BHD

 

(COMPANY NO.: 13891-V) … DEFENDANTS

 

JUDGMENT

 

(Court enclosure no. 91)

 

A. Introduction

 

1. This is a “peculiar’ case wherein certain defendants have objected strenuously to the plaintiffs’ application to cross-examine one of the defendants in respect of his affidavits filed in the originating summons (1st Cross-examination Application). After I have allowed the 1st Crossexamination Application, the same defendants who objected to the 1st Cross-examination Application, filed their own application to cross-examine 4 deponents of affidavits filed on behalf of the plaintiffs (2nd Crossexamination Application). The sole issue that arises is whether I should exercise my discretion to allow the 2nd Cross-examination Application on, among others, the 3 following grounds:

 

(a) is the 2nd Cross-examination Application made in good faith?;

 

(b) are the applicants of the 2nd Cross-examination Application estopped from filing the 2nd Cross-examination Application based on their affidavits and conduct in opposing the 1st Cross-examination Application?; and/or

 

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(c) is there unexplained and excessive delay in filing the 2nd Crossexamination Application?

 

B. 1st Cross-examination Application

 

2. In this originating summons (OS), the plaintiffs (Plaintiffs) have applied in court enclosure no. 29 (Court Enc. No. 29) for leave of this court to crossexamine the first defendant (1st Defendant) on 3 affidavits affirmed by the 1st Defendant.

 

3. Court Enc. No. 29 has been “vigorously’ opposed by the 1st Defendant, second to fourth and sixth defendants (2nd, 3rd, 4th and 6th Defendants).

 

4. On 15.5.2015, I allowed Court Enc. No. 29 (Decision dated 15.5.2015). The grounds for the Decision dated 15.5.2015 can be found in [2015] AMEJ 1047 and [2015] MLRHU 479 [Charles Koo Ho Tung (No 1)].

 

C. 2nd Cross-examination Application

 

5. After the Decision dated 15.5.2015, on 19.6.2015, the 2nd to 4th and 6th Defendants filed an application in court enclosure no. 91 (Court Enc. No. 91). In Court Enc. No. 91, the 2nd to 4th and 6th Defendants applied for leave of this court to cross-examine the following deponents of affidavits:

 

(a) the first plaintiff (1st Plaintiff) who affirmed 6 affidavits in this case;

 

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(b) the third plaintiff (3rd Plaintiff), the deponent of 2 affidavits filed in the OS;

 

(c) Ms. Moy Sook Ching (Ms. Moy) who affirmed 4 affidavits on behalf of the Plaintiffs; and

 

(d) Mr. Koo Ho Liang Henry (Mr. Henry Koo) who has affirmed 1 affidavit in this case.

 

In this judgment, I will refer to the 1st and 3rd Plaintiffs together with Ms. Moy and Mr. Henry Koo as the “4 Deponents”.

 

D. Submission of 2nd to 4th and 6th Defendants

 

6. In support of Court Enc. No. 91, the 2nd to 4th and 6th Defendants have relied on my judgment in Charles Koo Ho Tung (No 1). According to learned counsel for the 2nd to 4th and 6th Defendants, all the relevant factors taken into account by this court in allowing Court Enc. No. 29, have been fulfilled in respect of Court Enc. No. 91. As such, the 2nd to 4th and 6th Defendants contended that the “same considerations warranting the crossexamination of [1st Defendant] ought to warrant the cross-examination” of the 4 Deponents. The considerations which support Court Enc. No. 91, according to the 2nd to 4th and 6th Defendants are as follows:

 

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(a) Court Enc. No. 91 is not in respect of an interlocutory matter but applies for leave to cross-examine the 4 Deponents so as to assist this court to decide the OS on its merits;

 

(b) there is no evidence that Court Enc. No. 91 is filed –

 

(i) based on mala fide; or

 

(ii) for an improper or collateral purpose to –

 

(1) delay the hearing of the OS; or

 

(2) harass, intimidate and/or oppress the Plaintiffs or the 4 Deponents;

 

(c) the issues for the cross-examination of the 4 Deponents have been sufficiently identified by the 2nd to 4th and 6th Defendants (Identified Issues);

 

(d) the Identified Issues are relevant to the OS;

 

(e) there is an acute conflict in the affidavit evidence regarding the Identified Issues in the sense that the truth of the affidavits of the 4 Deponents has been challenged by the 2nd to 4th and 6th Defendants;

 

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(f) the cross-examination of the 4 Deponents will advance the cause of justice as –

 

(i) there is no contemporaneous documents in this case which will resolve the conflict in affidavit evidence regarding the Identified Issues; and

 

(ii) the affidavits of the 4 Deponents which are lengthy and detailed, clearly show that the oral evidence of the 4 Deponents will assist this court to decide justly the OS; and

 

(g) the 2nd to 4th and 6th Defendants have not been guilty of inordinate delay in filing Court Enc. No. 91 because –

 

(i) as at the date of filing Court Enc. No. 91, no hearing date has been scheduled for the OS; and

 

(ii) this court has only allowed Court Enc. No. 29 on 15.5.2015 and Court Enc. No. 91 is only filed “just a month” after the Decision dated 15.5.2015.

 

7. The following cases have been cited by the 2nd to 4th and 6th Defendants to support Court Enc. No. 91:

 

(a) Leisure & Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189;

 

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(b) Emporium Jaya (Bentong) Sdn Bhd v Emporium Jaya (Jerantut) Sdn Bhd (No 2) [2002] 5 MLJ 675;

 

(c) Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001] 4 MLJ 56;

 

(d) Tetuan Kumar Jaspal Quah & Aishah (suing as a firm) v The CoOperative Central Bank Ltd [2007] 4 MLJ 638;

 

(e) Kumagai Gumi Co Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application [1994] 2 MLJ 789;

 

(f) HSBC Bank Malaysia Bhd v Macquarie Technologies (M) Sdn Bhd & another appeal [2004] 3 CLJ 121 (HSBC Bank’s Case);

 

(g) Lee Ah Kong @ Lee Muk Sang v Wings Logistic Sdn Bhd & Anor

 

[2015] 7 MLJ 408; and

 

(h) the judgment of KK Varma J in the Madhya Pradesh High Court case of M/s Harsh Wood Products Pvt Ltd v Sant Prakash Gupta & Ors

 

[1991] MPLJ 32.

 

E. Court’s discretion to order cross-examination of deponent of affidavit

 

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8. In hearing an originating summons, the court has the discretionary power under Order 28 rule 4(3), (4) and Order 38 rule 2(2) of the Rules of Court 2012 (RC) to order the cross-examination of a deponent of an affidavit. I reproduce Order 28 rule 4 and Order 38 rule 2 RC as follows:

 

“ Directions by Court Order 28 rule 4

 

(1) The Court hearing an originating summons may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the Court, if satisfied that it is just to do so, may rehear the originating summons.

 

(2) Unless on the first hearing of an originating summons the Court disposes of the originating summons altogether or orders the cause or matter begun by it to be transferred to a Subordinate Court or makes an order under rule 8, the Court shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof.

 

(3) Without prejudice to the generality of paragraph (2), the Court shall, at as early a stage of the proceedings on the originating summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can accordingly best be secured by hearing the originating summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and that the originating summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without cross-examination of any of the deponents, as it may direct.

 

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(4) Without prejudice to the generality of paragraph (2), and subject to paragraph (3), the Court may give directions as to the filing of evidence and as to the attendance of deponents for crossexamination and any other directions.

 

Evidence by witness statement Order 38 rule 2

 

(1) Without prejudice to the generality of rule 1, and unless otherwise provided by any written law or by these Rules, at the trial of an action commenced by writ, evidence-in-chief of a witness shall be given by way of witness statement and, unless the Court otherwise orders or the parties to the action otherwise agree and subject to such directions as the Court may make, such a witness shall attend trial for cross-examination and, in default of his attendance, his witness statement shall not be received in evidence except with the leave of the Court.

 

(2) In any cause or matter begun by originating summons and on

 

any application made by notice of application, evidence shall be given by affidavit unless in the case of any such cause, matter or application any provision of these Rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.

 

(3) Notwithstanding paragraph (1) or (2), the Court may, if it thinks just, order that evidence of a party or any witness or any part of such evidence be given otherwise than by witness statement at the trial or hearing of any cause or matter.

 

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(4) Unless otherwise ordered by the Court, a witness statement must be filed in Court and served on the other parties to the action not less than seven days before it is to be tendered and read at the trial.”

 

(emphasis added).

 

9. My decision in respect of Court Enc. No. 29 in Charles Koo Ho Tung (No 1) has been affirmed by the Court of Appeal. In Charles Koo Ho Tung (No 1), at paragraphs 54-58, I have decided as follows:

 

“54. Before I discuss the merits of Court Enc. No. 29, I will state my

 

own understanding of Malaysian cases in respect of the exercise of the court’s discretionary power to order or refuse cross-examination of a deponent of an affidavit.

 

55. Firstly, whether the court exercises its discretion to allow

 

or not the cross-examination of a deponent in a particular case, is dependent on the particular facts of that case. As such, judgments on the issue of cross-examination of deponents, in my view, are purely illustrative and are not binding legal precedents from the view point of the stare decisis doctrine. I cite Mahadev Shankar JCA’s judgment in the Court of Appeal case of Structural Concrete Sdn Bhd v Wing Tiek Holdings Bhd [1997] 1 CLJ 300, at 306, as follows:

 

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“Exercises of judicial discretion are not judicial precedent because they are only authority for the facts of the particular case.’

 

55. Secondly, Order 28 rule 4(3) and (4) and Order 38 rule 2(2)

 

RC do not lay down any consideration, let alone a “prime consideration”, to be taken into account by the court in the exercise of its discretion regarding Court Enc. No. 29. This is understandable as the court’s discretion under Order 28 rule 4(3) and (4) and Order 38 rule 2(2) RC, in my opinion, should not be fettered. I rely on the High Court judgment by Raja Azlan Shah J (as His Royal Highness then was) in Gomez v Gomez [1969] 1 MLJ 228, at 228 and 230, as follows

 

“This case raises the singularly important question as to whether a person other than the deponent to an affidavit can be cross-examined. Order 38 rule 1 [RSC] provides that”a judge may, on the application of either party, order the attendance for crossexamination of the person making any such affidavit.”

 

These cases [on cross-examination of deponents] are not to be read as laying down rules of universal application. If once it were taken as settled, then there is no room for the exercise of discretion but a rule of law is substituted for it. The power given by Order 38 rule 1 is obviously a matter of discretion to be

 

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exercised in accordance with well-known judicial principles.

 

(emphasis added).

 

I am mindful of Tengku Baharudin Shah JCA’s majority judgment of the Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah (which laid down the “3 prime considerations”).

 

It must be pointed out that in Tetuan Kumar Jaspal Quah & Aishah –

 

(a) Tengku Baharudin Shah JCA held as follows, at p. 653-654 –

 

“[32] In the second place, an

 

application to the registrar for a review of taxation does not require affidavit evidence unless the court permits. Since no direction to admit any evidence had been made by the court, any application for cross-examination on affidavit is irrelevant and in any case premature. The distinction between O 38 r 2(3) RHC and its predecessor O 31 r 1 RSC seems to have escaped the attention of the parties. The significant difference is the addition of the underlined words in the present rule as follows:

 

The addition of the last batch of words above must necessarily mean that in the situation now prescribed i.e. where ‘these rules otherwise

 

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provides1 and where ‘the court

 

otherwise directs’, evidence may not be given by affidavit. An application for review of taxation is made under O 59 r 34 RHC which is a rule that provides otherwise in that r 34(3) does not require any affidavit to be filed nor evidence to be adduced. It merely provides for the applicant for a review to ‘deliver to the registrar objections in writing specifying by a list the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which is objected to and stating concisely the nature and grounds of the objection in each case.’ It is only on reviewing the decision on any item that r 35 empowers the registrar, if he should think fit or desirable, to receive further evidence or exercise all other powers which he might exercise on an original taxation. Accordingly, until the court deems it fit to require further evidence for the purpose of review any affidavit filed would be irrelevant to the proceedings. ”

 

(emphasis added).

 

It is clear that Tetuan Kumar Jaspal Quah & Aishah

 

concerns the High Court’s revision of the Senior Assistant Registrar’s taxation of costs under the then applicable RHC and this does not require affidavit evidence. Hence, the application to cross-examine the deponent in Tetuan Kumar Jaspal Quah & Aishah is not necessary and the dicta regarding the “3 prime considerations” in Tetuan Kumar Jaspal Quah & Aishah, in my respectful opinion, is merely obiter; and

 

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(b) Zaleha Zahari JCA (as Her Ladyship then was) was the other majority judge in Tetuan Kumar Jaspal Quah & Aishah. Her Ladyship did not refer to the “3 prime considerations” and decided in Tetuan Kumar Jaspal Quah & Aishah, at p. 655-656, as follows –

 

“[42] I am in agreement with the decision of the learned judge that the issue can be decided without reference to any crossexamination and that a decision can be made from the contemporaneous documents in the court file in order to arrive at a decision on the matters in issue. The proposed cross-examination as to whether the appellant’s firm or Vijay Kumar Natarajan himself was appointed to represent the respondent is at the best, of little relevance and the cross-examination was rightly refused as the contemporaneous records from the court file would clearly show the names of counsel from the appellant’s firm who conducted the hearing of the applications in issue. ”

 

(emphasis added).

 

56. Thirdly, the court should be slow to grant leave for cross-

 

examination of a deponent in an interlocutory matter. This

 

is understandable as cross-examination of a deponent in an interlocutory application, will inevitably delay the disposal of the interlocutory application and this in turn, will ultimately delay the final disposal of the case. I cite the following High Court cases (in chronological order):

 

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(a) Lim Beng Choon J decided as follows in Balwant Singh Purba v R Rajasingam [1987] CLJ (Rep) 468, at 469 –

 

This is an application made by the plaintiff for leave pursuant to O. 38 r. 2(3) [RHC] to cross-examine the defendant in respect of the affidavit made by him in support of his application to set aside the interim injunction granted by this Court on 18 December 1986. I dismissed this application after hearing the submissions of Counsel of the respective parties.

 

For purpose of this judgment I need only mention two of the principles. The first one is mentioned in the following passage appearing at p. 592 of the English Supreme Court Practice [1979] Vol. 1:

 

There is a discretion as to ordering cross-examination on affidavits filed on interlocutory applications. Cross-examination upon affidavits sworn in applications for interlocutory injunctions is very rare.

 

The second principle is that the power as conferred by the said O. 38 r. 2(3) can be invoked only in respect of an issue which the Court is asked to determine in the interlocutory proceeding and not in respect of any other issue which should be determined at the trial of the action proper .”

 

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(emphasis added);

 

(b) Syarikat Tungaring Kilang Papan Sdn Bhd v Sabah Forest Industries Sdn Bhd & Ors [1990] 2 MLJ 38, at

 

39, concerned an application to cross-examine 2 deponents of affidavits filed in respect of an interlocutory injunction application. In Syarikat Tungaring Kilang Papan Sdn Bhd, at p. 42, Haidar J (as His Lordship then was) followed Lim Beng Choon’s judgment in Balwant Singh Purba; and

 

(c) in SAP (M) Sdn Bhd & Anor v I World HRM Net Sdn Bhd & Anor [2006] 2 MLJ 678, at 683-684, Vincent Ng J (as His Lordship then was) held as follows –

 

“[14] In an application for interim injunction the court is only required to determine whether there are serious issues to be tried. The court is not required to make a decision on the merits of the case at this stage. Leave to cross-examine a deponent of affidavit in interim injunction should be sparingly granted as it would allow the parties to have a rehearsal before the trial and such rehearsals could have an oppressive effect.

 

[15] I would hold that the granting of leave to cross-examine a deponent of affidavit in interim injunction would in effect be

 

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allowing a fine tooth comb examination of affidavit evidence even at the interlocutory proceeding stage. This would result in the opening of flood gates which would allow the defendants to adopt delay tactics in future interim injunction applications and should be avoided.

 

[16] At the interim injunction stage the court is not required to go into minute details. The test is simply whether there are serious issues to be tried based on the affidavit evidence.

 

[17] In both Balwant Singh Purba v R. Rajasingam [1996] 2 MLJ

 

549 and Syarikat Tunggaring Kilanig Papan Sdn Bhd v Sabah Forest Industries Sdn Bhd [1990] 2 MLJ 38 on applications for interim injunction the court refused leave to cross-examine. It was stated that cross-examination upon affidavit sworn in application for interlocutory injunction is very rare. Also cross-examination can only be evoked in respect of an issue which the court is asked to determine in the interlocutory proceeding and not in respect of any other issue which should be determined at the trial of the action proper.

 

[18] I am of the view that the defendants at this stage of the proceedings should not be allowed to crossexamine the deponent to test the veracity of the witness because this

 

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will actually go to the merits of the case. To allow the defendants, at this early stage of the proceedings, to cross-examine when an urgent injunction is sought, would only have the effect of delaying the prompt determination of the merits of the application for injunction – perhaps this was the intention of the defendants, who in any event is not precluded from, filing further affidavits to counter assertions in the plaintiffs affidavits that were sought to be impugned.”

 

(emphasis added).

 

57. Fourthly, an applicant for leave to cross-examine a

 

deponent bears the legal burden to persuade the court to exercise its discretion to grant leave. This is clear from the Tengku Baharudin Shah JCA S majority judgment of the Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah, at p. 649, as follows:

 

“[18] It was the appellant’s contention, relying on an extract from the High Court judgment in Gomez v Gomez [1969] 1 MLJ 228, that the onus is on the respondent to show why cross-examination should not be allowed which in this case the respondent has failed to do. It was also contended that only in exceptional cases should the judge refuse an application to cross-examine a deponent on his affidavit — see Collin LJ in Comet Products UK Ltd v Hawkex Plastics Ltd & Anor [1971] 2 QB 67 at p 77.

 

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[19]

 

With respect, I do not think these are correct statements of the law in this country .”

 

(emphasis added).

 

58. Fifthly, in respect of an originating summons for final relief,

 

the following factors should be considered by the court in the exercise of its discretion to allow or not the crossexamination of a deponent:

 

(a) the application to cross-examine a deponent should be made in good faith. Any such application should not be made –

 

(i) based on mala fide; or

 

(ii) for an improper or collateral purpose to –

 

(1) delay proceedings; or

 

(2) harass, intimidate and/or oppress the deponent and/or opposing party.

 

The following High Court cases demonstrate the need for a bona fide application for leave to cross-examine a deponent –

 

(i) Salleh Abas FJ (as His Lordship then was and sitting as a High Court judge) held as follows in Leisure & 19

 

Allied Industries Pty Ltd v Udaria Sdn Bhd [1980] 1 MLJ 189, at 190 –

 

To allow or not to allow the respondent’s application to cross-examine the appellant’s witnesses upon their affidavits, I take it, is a matter of court’s discretion. In appropriate circumstances, there is no reason why such application should be refused merely because the deponent is a foreigner living outside the jurisdiction (Re Lucas [1952] 1 All ER 102); “otherwise foreigners would have an advantage” (Strauss v Goldschmidt 8 SLR 239). It is really a matter of common sense and an elementary legal principle that a party who swears an affidavit much be prepared to stand up to it by crossexamination unless the application to cross-examine him is without just cause vexatious or motivated by desire to delay the proceedings (Allen v Allen [1894] P 239). In view of the appellant’s application for judgment under Order 32 Rule 6, I am not, however, prepared to hold the respondent’s application to crossexamine the appellant’s witnesses as being without just cause or motivated by desire to delay the proceedings or without bona fide or sham or vexatious.”

 

(emphasis added); and

 

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(ii) in Emporium Jaya (Bentong) Sdn Bhd v Emporium Jaya (Jerantut) Sdn Bhd (No 2) [2002] 5 MLJ 675, at 685, Ramly Ali J (as His Lordship then was) decided as follows –

 

“In order to enable me to exercise my judicial discretion as regards the present applications made by the applicants in the present case, it is necessary for me to see how the proposed cross examination would be relevant to the issue in the petition. An examination of this issue is therefore essential in order to enable me to determine whether the applications are made ‘without just cause, or motivated by desire to delay proceedings or without bona fide or sham or vexatious.’ ”

 

(emphasis added);

 

(b) relevant issue(s) for cross-examination should be sufficiently identified by the applicant [Identified Issue(s)]. This is to ensure that the proposed crossexamination does not constitute a harassment, intimidation and/or oppression of the deponent and/or opposing party. This consideration is stated in the following cases –

 

(i) Siti Norma Yaakob FCJ’s (as Her Ladyship then was) judgment in the Court of Appeal case of Indrani a/p Rajaratnam & Ors v Fairview Schools Bhd [2001]

 

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4 MLJ 56, at 61 (concurred by KC Vohrah JCA, at p. 62 and 64-65); and

 

(ii) Tengku Baharudin Shah JCA’s majority judgment of the Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah, at p. 651;

 

(c) there must be a conflict in affidavit evidence in respect of the Identified Issue(s) so as to necessitate a cross-examination of the deponent in question. The truth of the averment in an affidavit must be challenged. Once again, I rely on Tengku Baharudin Shah JCA S majority judgment of the Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah, at p. 651;

 

(d) the cross-examination should advance the cause of justice. The cause of justice is not advanced when a conflict in affidavit evidence may be resolved by undisputed contemporaneous documents. I cite the following cases –

 

(i) Tengku Baharudin Shah JCA’s majority judgment of the Court of Appeal in Tetuan Kumar Jaspal Quah & Aishah, at p. 651; and

 

(ii) Anuar JS (as His Lordship then was) judgment in the High Court case of Kumagai Gumi Co Ltd v Zenecon-Kumagai Sdn Bhd & Ors and another application [1994] 2 MLJ 789, at 799; and

 

(e) I am of the respectful view that there is no “condition” that an application to cross-examine a deponent should be made “at

 

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the earliest stage possible as is practicable” (as submitted by the 1st to 4th and 6th Defendants). Having said that, there should not be any unreasonable delay in applying to cross-examine a deponent. If there is any delay in such an application, there must be an adequate and reasonable explanation on affidavit evidence for such a delay. In Indrani a/p Rajaratnam, at p. 62, an application to cross-examine a deponent had been dismissed on the ground of, among others, delay.”

 

(emphasis added).

 

F. Court Enc. No. 91 has not been made in good faith

 

10. I am of the view that Court Enc. No. 91 has not been filed in good faith and on this ground alone, Court Enc. No. 91 should be dismissed – please see the High Court’s judgments in Leisure & Allied Industries Pty Ltd (at p. 190) and Emporium Jaya (Bentong) Sdn Bhd (at p. 685). My decision is premised on the following reasons:

 

(a) if the 2nd to 4th and 6th Defendants had genuinely wished to crossexamine the 4 Deponents, they should have filed an application to cross-examine the 4 Deponents upon receipt of Court Enc. No. 29 (cross-examination of 1st Defendant). This was however not done;

 

(b) the 4th Defendant affirmed an affidavit on 26.1.2015 (Court Enc. No. 36) to oppose Court Enc. No. 29. Paragraph 1 of Court Enc. No. 36 stated that Court Enc. No. 36 had been affirmed not only for the 4th Defendant but also for the 1st to 3rd and 6th Defendants. Court Enc. No. 36 averred the following matters in opposing Court Enc. No. 29 –

 

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(i) the 4th Defendant verily believed that “not all the disputed allegations are “serious” as alleged or material to the 1st-3d Plaintiffs’ purported case” (paragraph 7);

 

(ii) the 4th Defendant verily believed there was sufficient affidavit evidence and contemporaneous documents before this court to decide the disputed issues identified by the Plaintiffs to crossexamine the 1st Defendant (paragraphs 12.1, 14.1, 14.2 and 16.3);

 

(iii) the 4th Defendant verily believed “nothing further’ would be gained from the cross-examination of the 1st Defendant (paragraphs 12.2, 14.3, 16.4 and 18);

 

(iv) the 4th Defendant verily believed that some of the allegations made by the 1st Defendant which the Plaintiffs wanted to crossexamine, were “collateral and not central’ to this case (paragraphs 14.5, 16.6 and 28); and

 

(v) the cross-examination of the 1st Defendant would “only serve to protract and delay’ the hearing of this case and result in additional costs and waste of valuable time (paragraph 31)

 

(1st Set of Affirmed Allegations).

 

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The 1st Set of Affirmed Allegations clearly evidences a lack of good faith on the part of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91;

 

(c) on 19.5.2015, the 4th Defendant affirmed a corrective affidavit (Court Enc. No. 72). Court Enc. No. 72 –

 

(i) had been affirmed not only for the 4th Defendant but also on behalf of the 2nd, 3rd and 6th Defendants (paragraph 1);

 

(ii) referred to, among others, Court Enc. No. 36 (paragraph 4.24); and

 

(iii) corrected other affidavits affirmed by the 4th Defendant but did not correct Court Enc. No. 36.

 

Court Enc. No. 72 would be a good opportunity for the 2nd to 4th and 6th Defendants to correct or withdraw the 1st Set of Affirmed Allegations but this was not done. In fact, the 1st Set of Affirmed Allegations has not been withdrawn at any time by any one or all of the 2nd to 4th and 6th Defendants. On or before the filing of Court Enc. No. 91, the 2nd to 4th and 6th Defendants should have withdrawn the 1st Set of Affirmed Allegations. Such an omission by the 2nd to 4th and 6th Defendants fortifies the inference of lack of bona tides on the part of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91;

 

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(d) Court Enc. No. 91 is supported by an affidavit affirmed by the 4th Defendant on 17.6.2015 (Court Enc. No. 92). According to Court Enc. No. 92 –

 

(i) Court Enc. No. 92 has been affirmed on behalf of the 2nd to 4th and 6th Defendants (paragraph 1);

 

(ii) Court Enc. No. 92 refers to, among others, Court Enc. No. 36 (paragraph 4.19) and Court Enc. No. 72 (paragraph 4.30);

 

(iii) the 4th Defendant verily believed Court Enc. No. 91 was “bona fide in nature” and was “not frivolous or intended to delay the proceedings”, bearing in mind that the 1st Defendant had to be cross-examined first before the OS could be disposed of (paragraphs 9.5, 21, 32 and 37);

 

(iv) the 4th Defendant verily believed that “in light of [Decision on 15.5.2015]”, the cross-examination of the 4 Deponents –

 

(1) would be “necessary for the just and fair determination of the issues” in the OS (paragraphs 9.2, 9.4, 21, 32 and 37);

 

(2) would not unfairly prejudice the Plaintiffs (paragraphs 9.3, 21, 32 and 37); and

 

26

 

(3) is supported by the “balance of convenience” (paragraphs 9.7, 21, 32 and 37);

 

(v) the 4th Defendant verily believed that if Court Enc. No. 91 was dismissed, there would be irreparable prejudice and injustice to the 2nd to 4th and 6th Defendants (paragraphs 9.6, 21, 32 and 37);

 

(vi) the 4th Defendant stated that Court Enc. No. 91 was not made earlier because the 2nd to 4th and 6th Defendants had been advised by their solicitors that the OS could be heard and disposed of by way of affidavit evidence (Paragraph 40 of Court Enc. No. 92). Upon the Decision dated 15.5.2015, the 2nd to 4th and 6th Defendants then instructed their solicitors to file Court Enc. No. 91 (Paragraph 41 of Court Enc. No. 92); and

 

(vii) the 4th Defendant verily believed that due to the “considerable number and length of the various affidavits” filed in this case, “time was taken to identify the paragraphs of the Plaintiffs’ affidavits that needed to be cross-examined” (paragraph 42)

 

(2nd Set of Affirmed Allegations).

 

Paragraphs 40 and 41 of Court Enc. No. 92, in my opinion, are the true reasons for the filing of Court Enc. No. 91. Court Enc. No. 91 is not filed based on the relevant considerations discussed in the various cases as explained in Charles Koo Ho Tung (No 1) but is instead filed by the 2nd to 4th and 6th Defendants as a “tactical countermeasure” to delay specifically the enforcement of the Decision dated

 

27

 

15.5.2015 and generally, the disposal of the OS. Accordingly, Court Enc. No. 91 has been made by the 2nd to 4th and 6th Defendants for an improper and/or collateral purpose. I will discuss later in this judgment about the unexplained and inordinate delay on the part of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91;

 

(e) the many contradictions between the 1st Set of Affirmed Allegations with paragraphs 9.2 to 9.7, 21, 32 and 37 of Court Enc. No. 92, support the inference that Court Enc. No. 91 has not been made in good faith;

 

(f) the 1st to 4th and 6th Defendants had presented a lengthy written submission to oppose Court Enc. No. 20 (Submission Against Court Enc. No. 29). The Submission Against Court Enc. No. 29, contended, among others, as follows –

 

(i) Court Enc. No. 29 had not been made “at the earliest stage possible as is practicable”;

 

(ii) the Plaintiffs had filed Court Enc. No. 29 based on mala fide;

 

(iii) the court should only exercise its power to order the crossexamination of a deponent of an affidavit if the following “3 prime considerations” are cumulatively fulfilled –

 

28

 

(1) the truth of the averments in the 1st Defendant’s affidavits as specified by the Plaintiffs, had been challenged by the Plaintiff;

 

(2) relevant issues of fact had been identified by the Plaintiffs; and

 

(3) the 1st Defendant’s cross-examination should only be allowed if the disputed facts were relevant to the issues to be decided in the OS;

 

(iv) the 1st Defendant’s cross-examination would not advance the cause of justice; and

 

(v) the 1st Defendant’s cross-examination should be refused because there was sufficient affidavit evidence and contemporaneous documents.

 

The Submission Against Court Enc. No. 29 is clearly contrary to the 2nd Set of Affirmed Allegations which purportedly support Court Enc. No. 91. Such an inconsistency supports the inference that the 2nd to 4th and 6th Defendants lack good faith in filing Court Enc. No. 91;

 

(g) almost immediately after the Decision dated 15.5.2015 had been pronounced in court, the then learned counsel for the 1st to 4th and 6th Defendants orally applied to stay the effect of the Decision dated 15.5.2015 (Oral Stay Application) pending an appeal by the 2nd to 4th

 

29

 

and 6th Defendants to the Court of Appeal against the Decision dated

 

15.5.2015 (Appeal Against Decision dated 15.5.2015). The Appeal Against Decision dated 15.5.2015 was subsequently filed on

 

29.5.2015 (the 1st Defendant did not file an appeal to the Court of Appeal against the Decision dated 15.5.2015).

 

If there was good faith on the part of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91, the 2nd to 4th and 6th Defendants would not have instructed their learned counsel to make the Oral Stay Application. Such an instruction would have to be given prior to the Decision dated 15.5.2015. If the 2nd to 4th and 6th Defendants were bona fide in filing Court Enc. No. 91, they would have immediately instructed their solicitors to file Court Enc. No. 91 after the Decision dated 15.5.2015 was given. However, this was not the case; and

 

(h) Court Enc. No. 91 was filed on 19.6.2015, after the filing of the Appeal Against Decision dated 15.5.2015 (lodged on 29.5.2015). If the 2nd to 4th and 6th Defendants had filed Court Enc. No. 91 in good faith, they should have instructed their solicitors to withdraw the Appeal Against Decision. To the contrary, the 2nd to 4th and 6th Defendants proceeded with the Appeal Against Decision dated 15.5.2015. The Court of Appeal subsequently dismissed the Appeal Against Decision dated 15.5.2015.

 

I must make clear that I am not disputing the right of the 2nd to 4th and 6th Defendants under s 67(1) of the Courts of Judicature Act 1964 to lodge the Appeal Against Decision dated 15.5.2015. The fact that the 2nd to 4th and 6th Defendants had filed the Appeal Against Decision dated 15.5.2015 and yet, they subsequently filed Court Enc. No. 91 and proceeded with the Appeal Against Decision dated 15.5.2015,

 

30

 

showed a lack of bona fides on the part of the 2nd to 4th and 6th Defendants in making Court Enc. No. 91.

 

G. 2nd to 4th and 6th Defendants are estopped from filing Court Enc. No. 91

 

11. Malaysian courts have recognized the wide application of the estoppel doctrine as illustrated in Gopal Sri Ram JCA’s (as he then was) judgment in the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294, as follows:

 

“ The time has come for this Court to recognise that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless .”

 

(emphasis added).

 

12. I now refer to Lord Bridge’s judgment (concurred by Lord Diplock, Lord Fraser, Lord Roskill and Lord Brightman) in the House of Lords case of Langdale & Anor v Danby [1982] 3 All ER 129, which has applied the estoppel doctrine in the context of steps taken by one party in legal proceedings. The facts of Langdale are different from this case but Langdale illustrates that a party in a contentious matter may be estopped from relying on a certain position in the case if the party has earlier

 

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conducted his or her case in a manner contrary to that position. I rely on the following judgment of Lord Bridge in Langdale, at p. 140:

 

“As I see it the direct result of the conduct of Mr Danby’s case before Oliver J was to permit the Langdales to obtain summary judgment.

 

They then spent nearly two years in time and a great deal of money in costs in the course of enforcing that judgment. True it is that part, but part only, of the costs so incurred could be and were set off against the balance of the purchase price of the cottage due to Mr Danby, probably Mr Danby’s only significant resource. But now, if the Court of Appeal judgment were to stand, the Langdales would face a full scale trial against a legally-aided defendant in which, though they succeeded, they would have little prospect of recovering any of their costs. Looking at this history in a commonsense way, it seems to me beyond argument that the Langdales will have acted to their detriment, on the faith of the conduct of Mr Danby’s case which enabled them to obtain summary judgment, by spending large sums to enforce that judgment, if they are now denied the benefit of it by allowing Mr Danby to set up a case which conflicts radically with the case presented on his behalf before Oliver J. Independently of any other ground I would, therefore, hold Mr Danby estopped from arguing the case on which he succeeded in the Court of Appeal”

 

(emphasis added).

 

13. Based on the reasons explained in the above sub-paragraphs 10(a) to (h), I have no hesitation to estop the 2nd to 4th and 6th Defendants from proceeding with Court Enc. No. 91 in view of their conduct in respect of

 

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Court Enc. No. 29 (especially the 1st Set of Affirmed Allegations which have yet to be withdrawn, Submission Against Court Enc. No. 29, Oral Stay Application and Appeal Against Decision dated 15.5.2015).

 

H. Unexplained excessive delay in making Court Enc. No. 91

 

14. If there is an unreasonable delay in applying to cross-examine a deponent of an affidavit and such a delay has not been adequately explained in the applicant’s affidavit, this is a ground in itself to dismiss the crossexamination application – I refer to the judgments of Siti Norma Yaakob JCA (as she then was) (at p. 61-62) and KC Vohrah J (as he then was) (at p. 65-66) in the Court of Appeal case of Indrani.

 

15. In deciding whether there is excessive delay in the filing of Court Enc. No. 91, the following provisions in RC are relevant:

 

(a) Order 34 rule 9 RC provides as follows –

 

“Duty to make all interlocutory applications at pre-trial case management

 

Order 34 rule 9

 

(1) Any party to whom the notice to attend pre-trial case management addressed shall so far as practicable apply at the first pre-trial case management for any order or directions which he may desire as to any matter capable of being dealt with on an interlocutory application in the action and shall, not less than seven days before the first

 

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pre-trial case management date, serve on the other parties a notice in Form 60 specifying the orders and directions sought.

 

(2) If the pre-trial case management is adjourned and any party to the proceedings desires to apply at the resumed pre-trial case management for any order or directions not asked in any notice given under paragraph (1), he shall, not less than seven days before the resumed pre-trial case management date, serve on the other parties a notice in the manner prescribed in paragraph (1) specifying those orders and directions sought in so far as they differ from the orders and directions asked for during the first pre-trial case management.

 

(3) Any application subsequent to the pre-trial case management and before judgment as to any matter capable of being dealt with on an interlocutory application in the action shall be made by a notice of application.”

 

(emphasis added).

 

By virtue of Order 34 rule 9(1) and (2) RC, all parties have a mandatory “duty’ to make all interlocutory applications during pre-trial case management (such as applications to cross-examine deponents of affidavits). I rely on the following judgment by Zaki Azmi CJ in the Federal Court case of Blue Valley Plantations Bhd v Periasamy a/l Kuppannan & Ors [2011] 5 MLJ 521, at 529 –

 

“[15] The courts do not encourage parties to delay making any interlocutory application because by delaying such applications the final decision of the court will

 

34

 

also be delayed. It had been the practice of some plaintiffs or defendants to wait until the last minute to file all sorts of interlocutory applications. Today the Malaysian courts are discouraging these practices. Parties, particularly now, should not delay proceedings by filing interlocutory applications when the substantive hearing can be fixed by the trial courts early. … These expedition [sic] disposals have been proven by the practice of our New Commercial Courts and the New Civil Courts, where there are close monitoring of actions filed in that court and cases targeted to be completed within a year from filing.

 

[16] The Court of Appeal and this court (including any appellate court) abhor appeals in respect of interlocutory applications when issues raised in such application could be finally heard and disposed in the main suit. To me, seeking for certain interlocutory orders are sometimes merely delaying tactics taken up by a party who do not have a strong case. In some cases, delaying tactics can be taken up by a party to tire out his opponent with a view to forcing that opponent to an unfair settlement, delay can cause injustice to a party particularly when he has a strong case. …”

 

(emphasis added).

 

The use of the imperative word “shall’ (and not the permissive term “may”) in Order 34 rule 9(1) and (2) RC, indicates the intention of the Rules Committee to give mandatory effect to Order 34 rule 9(1) and (2) RC. In Public Prosecutor v Yap Min Woie [1996] 1 MLJ 169, at 172-173, the Federal Court gave effect to the mandatory term “shall’ in ss 12 and 28 of the then applicable Juvenile Courts Act 1947; and

 

(b) the court’s power to order cross-examination of a deponent of an affidavit in Order 28 rule 4(3) and (4) RC is “without prejudice to the

 

35

 

generality of Order 28 rule 4(2) RC. Order 28 rule 4(2) RC provides that the court “shall give such directions as to the further conduct of the proceedings as it thinks best adapted to secure the just, expeditious and economical disposal thereof’. Accordingly, the court’s discretionary power to order cross-examination of a deponent of an affidavit in Order 28 rule 4(3) and (4) RC does not prejudice the court’s mandatory duty to ensure that the OS is disposed of justly, expeditiously and economically.

 

16. I accept the Plaintiffs’ contention that there has been unreasonable delay in the filing of Court Enc. No. 91 by the 2nd to 4th and 6th Defendants. This decision is premised on the following 2 reasons (2 Reasons):

 

(a) the OS had been filed on 15.8.2014. By filing Court Enc. No. 91 on 19.6.2015, a delay of more than 10 months from the date of the filing of the OS, the 2nd to 4th and 6th Defendants had breached the mandatory duty imposed by Order 34 rule 9(1) and (2) RC to file expeditiously all interlocutory applications during pre-trial case management – please see the Federal Court’s judgment in Blue Valley Plantations Bhd;

 

(b) Court Enc. No. 29 was filed on 19.12.2014. The 2nd to 4th and 6th Defendants could have easily “tagged along” Court Enc. No. 29 and file an application to cross-examine the 4 Deponents. Both matters could be justly, expeditiously and economically disposed of in accordance with Order 28 rule 4(2) RC. This was not done by the 2nd to 4th and 6th Defendants. Instead, the 2nd to 4th and 6th Defendants embarked on a vigorous opposition to Court Enc. No. 29 and only filed Court Enc. No. 91 after the Decision dated 15.5.2015 went against them. Such an intentional and excessive delay on the part of the 2nd to

 

36

 

4th and 6th Defendants is contrary to a just, expeditious and economical disposal of the OS as mandated by Order 28 rule 4(2) RC.

 

17. In view of the 2 Reasons, I am not able to accept the following “excuses” proffered by the 2nd to 4th and 6th Defendants for the delay in making Court Enc. No. 91:

 

(a) the hearing of the OS had not been fixed;

 

(b) this court only allowed Court Enc. No. 29 on 15.5.2015;

 

(c) advice from the solicitors for the 2nd to 4th and 6th Defendants that the OS could be disposed of by way of affidavit evidence (Paragraph 40 of Court Enc. No. 92); and

 

(d) as there were many affidavits which were lengthy, time was needed to ascertain the Identified Issues for the cross-examination of the 4 Deponents

 

(4 Excuses).

 

18. In addition to the 2 Reasons, there is a third reason why the 4 Excuses are untenable. As explained in the above Part F, there are sufficient grounds to justify an inference that Court Enc. No. 91 has not been filed in good faith as Court Enc. No. 91 is intended to delay specifically the enforcement of

 

37

 

the Court’s Decision dated 15.5.2015 and generally, the disposal of the

 

OS.

 

19. I have not overlooked Order 1A [the court shall have regard to the overriding interest of justice in administering RC, including Order 28 rule 4(2) RC and Order 34 rule 9(1) and (2) RC] and Order 2 rule 1(2) [RC are a procedural code subject to the overriding objective of enabling the court to deal with cases justly]. The above interpretation of Order 28 rule 4(2) RC and Order 34 rule 9(1) and (2) RC is in consonance with the interest of justice to ensure that an application to cross-examine the deponent of an affidavit, is made expeditiously in good faith and is not filed for an improper or collateral purpose.

 

20. In view of the 3 above reasons, the 4 Excuses could not explain, let alone justify, the inordinate delay of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91.

 

I. 2nd to 4th and 6th Defendants have failed to discharge burden to

 

satisfy exercise of judicial discretion in favour of Court Enc. No.

 

91

 

21. All the cases cited by learned counsel for the 2nd to 4th and 6th Defendants can be distinguished from Court Enc. No. 91 on one or more of the 3 following grounds:

 

38

 

(a) there is a lack of good faith on the part of the 2nd to 4th and 6th Defendants in filing Court Enc. No. 91 (please see the above Part

 

F);

 

(b) as explained in the above Part G, by reason of a certain course of conduct of this case by the 2nd to 4th and 6th Defendants, the 2nd to 4th and 6th Defendants are estopped from succeeding in Court Enc. No. 91; and/or

 

(c) there has be an unreasonable delay on the part of the 2nd to 4th and 6th Defendants in making Court Enc. No. 91 which cannot be explained in view of the above 3 reasons (please see the above Part H).

 

22. The Court of Appeal’s judgment in HSBC Bank’s Case delivered by Nik Hashim JCA (as he then was) concerned an application to amend a defence and did not involve an application for leave to cross-examine a deponent of an affidavit.

 

23. M/s Harsh Wood Products Pvt Ltd is a decision of the Madhya Pradesh High Court which is based on Order 19 rule 2 [Order 19 rule 2 (India)] in the First Schedule to the Indian “Code of Civil Procedure, 1908” [CPC (India)]. Order 19 rule 2 (India) provides as follows:

 

“Power to order attendance of deponent for cross-examination

 

39

 

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.

 

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.”

 

Order 19 rule 2 (India) is materially different from our Order 28 rule 4 and Order 38 rule 2 (regarding the court’s power to order cross-examination of a deponent of an affidavit). Furthermore, there is no provision in CPC (India) which is equivalent to Order 34 rule 9 RC (which imposes a mandatory duty on parties to make interlocutory applications during pre-trial case management). As such, I am of the respectful view that Indian cases on CPC (India) regarding the court’s power to order cross-examination of a deponent of an affidavit, should be read with caution.

 

24. As decided in Charles Koo Ho Tung (No 1), at paragraph 55, whether a court orders or not the cross-examination of a deponent of an affidavit in a case, is an exercise of the court’s discretion dependent on the particular facts of the case and judgments on the exercise of such a discretion cannot constitute binding legal precedents from the view point of the stare decisis doctrine.

 

25. As held by Tengku Baharudin Shah JCA in the majority judgment of the Court of Appeal in Tetuan Kumar Jaspal & Quah, at p. 649, the 2nd to 4th and 6th Defendants bear the legal burden to persuade this court to exercise its discretion to allow Court Enc. No. 91. In view of the above reasons given

 

40

 

in Parts F, G and H, I find that the 2nd to 4th and 6th Defendants are unable to discharge their legal burden to persuade me to exercise judicial discretion to grant Court Enc. No. 91.

 

J. Costs for Court Enc. No. 91 should be paid forthwith by 2nd to 4th and 6th Defendants to Plaintiffs

 

26. Order 59 rule 7(1) RC reads as follows:

 

“ Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings; and any costs ordered shall be paid at the conclusion of the proceedings unless the Court otherwise orders ”

 

(emphasis added).

 

27. Order 59 rule 1(3) RC has provided a definition of “costs paid forthwith” as “the plaintiff or defendant, as the case may be, shall be entitled to his costs of that part of the proceedings in respect of which such an order is made, notwithstanding that the cause or matter has yet to be tried”.

 

28. The previous Order 59 rule 4(1) of the Rules of High Court 1980 (RHC) provided as follows:

 

“ Costs may be dealt with by the court at any stage of the proceedings; or after the conclusion of the proceedings and any order of the court for the payment of any costs may, if the court thinks fit, require

 

41

 

the costs to be paid forthwith notwithstanding that the proceedings have not been concluded

 

(emphasis added).

 

29. The preponderance of Malaysian cases on Order 59 rule 4(1) RHC, has taken the following approach (contrary to the position in English law) (1st Approach):

 

(a) generally, costs of an interlocutory application should be paid at the conclusion of the proceedings; and

 

(b) there are exceptional circumstances wherein the court may order costs to be paid forthwith (before the conclusion of the proceedings).

 

30. The 1st Approach is reflected in the following cases:

 

(a) in Hai Yue Hin v Public Feedmill (M) Sdn Bhd [1997] 3 MLJ 730, at 733-734, Shaik Daud JCA decided as follows in the Court of Appeal –

 

“Learned counsel for the appellant cited two English authorities in support of her contention that the proper interpretation of O 59 r 4(1) [RHC] is that when the court ordered costs to a party even in an interlocutory matter, such costs are to be paid forthwith, and not after the conclusion of the proceedings. The heavy reliance on these two cases is because the English Order which governs this is O 62 r 4(1) which is in pari materia with our O 59 r 4(1). In Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 All ER 533, it was held that in an interlocutory matter

 

42

 

orders for costs to be taxed made without stating ‘forthwith’ confers a right to immediate taxation. In Allied Collection Agencies Ltd v Wood & Anor [1981] 3 All ER 176, it was held (at p 176):

 

Where on an interlocutory application, the court intends that one party is to have the costs of that application irrespective of the outcome of the substantive action, the usual form of order is ‘costs in any event’, in which case the taxation is deferred until the conclusion of the substantive action. The words ‘defendant’s costs’ and the words ‘plaintiff’s costs’, which are only used in exceptional circumstances, have the effect of entitling the party concerned to obtain an immediate taxation.

 

Learned counsel for the appellant urged upon us to follow these two English authorities, especially when the English Order on the issue is in pari materia with our O 59 r 4(1). She also cited an unreported decision of Shankar J (as he then was) in East Asiatic Co (M) Bhd v Kilang Papan Aman Sdn Bhd in Kuala Lumpur High Court Civil Suit No 2157 of 1985.

 

That case also concerns the dismissal by the senior assistant registrar of an interlocutory application with costs. When an application for taxation of the costs came up before the senior assistant registrar and, on an objection by the respondent, the learned senior assistant registrar ordered that the bill should only be taxed at the conclusion of the trial. On appeal, Shankar J (as he then was) following the decisions in Adam & Harvey Ltd and Allied Collection Agencies Ltd held that:

 

Upon consideration of these authorities, I am left in no doubt now that the only interpretation of the registrar’s order, ‘dismissed with costs’ is that the costs were to be taxed and paid forthwith.

 

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On reading of O 59 r 4(1), we find that the intention of this rule is as clear as day. The rule itself indicates that the question of costs is left to the discretion of the court and also provide that the court ‘may, if the court thinks fit require the costs to be paid forthwith’. Surely, these words must mean what they say. If the court thinks it fit, the court itself would order the costs to be paid forthwith and in the absence of such an order, it should follow the general rule of interlocutory proceedings and the costs should only be paid after the conclusion of the proceedings. This interpretation does not seem to be a novel one, as some 30 years ago Smith J in Chow Yong Hong v Chow See Lim & Anor [1959] MLJ 23 held (at p 24) that:

 

The proceedings are purely interlocutory and should follow the general rule of interlocutory proceedings and that costs should be settled at the end of the action.

 

In interpreting O 59 r 4(1), the operative words must be ‘may, if the court thinks fit’. If the judge finds evidence sufficient to justify an order of costs to be paid forthwith, then if he thinks it fit, he would make such an order. For instance in dismissing an application for summary judgment under O 14, if there is evidence to suggest that the plaintiff, in the opinion of the judge, knew that the defendant relied on a contention which would entitle them to unconditional leave to defend, then the judge could and should, in our opinion, order that the costs be paid forthwith. The decision in Chow Yong Hong was adopted by Mohamed Dzaiddin J (as he then was) in Ko Ko Ma Pony Horse Centre v Rasa Sayang Beach Hotels (Pg) Bhd [1990] 1 MLJ 304. In dismissing an interlocutory application by the defendant, the court ordered costs to the plaintiff without adding the word ‘forthwith’. The learned judge held that where the proceedings were purely interlocutory, the general rule was that costs of the proceedings should be settled at the end of the action. The court further ordered that the costs of interlocutory proceedings should only be made payable forthwith or in any event when the party against whom the order has been made has been guilty of oppressive or unreasonable conduct, or the party has taken unnecessary or improper action.

 

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Having given our utmost consideration to the arguments and the authorities cited, we agree and adopt the interpretation given in the two decisions in Chow Yong Hong and Ko Ko Ma Pony Horse Centre, as being the more proper and true interpretation of O 59 r 4(1). To hold otherwise would make nonsense of the wording of the Order itself which, as stated earlier, is clear as day. It is only when the court thinks it fit to order the costs to be paid by the plaintiff forthwith that it should be so paid, otherwise it should follow the general rule in interlocutory proceedings and be paid only at the conclusion of the action.”

 

(emphasis added);

 

(b) Kamalanathan Ratnam J’s decision in the High Court case of Abdullah Hishan bin Hj Mohd Hashim, Dato’ v Sharma Kumari Shukla (No

 

2) [1999] 4 AMR 3823, at 3826-3827; and

 

(c) the judgment of Abdul Aziz Abdul Rahim JC (as he then was) in the High Court case of Drilltech Oilfield Services Ltd & Anor v Witech

 

Sdn Bhd [2003] 6 MLJ 650, at 656-657.

 

31. A second approach follows English cases (2nd Approach). The 2nd Approach is illustrated in Gopal Sri Ram JCA’s (as he then was) judgment in the Court of Appeal case of Skrine & Co v MBF Capital Bhd & Anor & Other Appeals [1998] 3 CLJ 432, at 462-463, as follows:

 

“We now come to the question of costs. Raja Aziz Addruse has argued that his client ought to have had the amendments in the first place. We agree with him. But, if that had happened, his client would have had to

 

45

 

pay the costs. The fact that he succeeds in this appeal does not put him in a better position as far as costs are concerned. We have examined the decisions of the English Court of Appeal in four unreported cases made available to us by counsel for the plaintiffs. They are Kalvin Cader Mackenzie v. Business Magazines (UK) Limited & Ors (CA 18 January 1996), Carmen Proetta v. Times Newspapers Limited (CA 27 February 1991),

 

Thomas Michael Bower v. Ian Robert Maxwell (CA 8 May 1989) and Edelman v. Times Newspapers Limited & Anor. (CA 17 January 1991).

 

We do not agree with Raja Aziz that the rule in those cases should not be applied here. Counsel says there was no delay in applying for the amendment. Again we do not agree. The facts relevant to the question of delay and lack of bona fides of the first defendant’s application have been dealt with by the learned judge in his judgment and we do not propose to deal with them here.

 

Late amendments must always be discouraged. We will follow the practice adverted to in the English cases. Although the appeal succeeds, the plaintiffs will have all the costs occasioned by the amendment to be taxed and paid forthwith.’’

 

(emphasis added).

 

32. I am in favour of the 1st Approach based on the wording of Order 59 rule 4(1) RHC. Furthermore, the Court of Appeal in Skrine & Co was not referred to Order 59 rule 4(1) RHC and its own earlier decision in Hai Yue Hin.

 

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33. The present Order 59 rule 7(1) RC, in my view, has given effect to the 1st Approach – as a general rule, costs of interlocutory proceedings shall only be paid at the conclusion of the proceedings unless the court orders costs to be paid forthwith (Exception). Order 59 rule 7(1) RC does not prescribe the circumstances for the application of the Exception. I am of the opinion that the court’s discretion to invoke the Exception is unfettered and needless to say, the exercise of such a discretion is based purely on the particular facts of the case in question.

 

34. In view of the inference that Court Enc. No. 91 has been filed without good faith for an improper and/or collateral purpose (please see the above Part F), I exercise my discretion under Order 59 rule 7(1) RC to order costs of Court Enc. No. 91 to be paid forthwith by the 2nd to 4th and 6th Defendants to the Plaintiffs notwithstanding that the OS has yet to be concluded.

 

K. Conclusion

 

35. Premised on the above reasons, I am constrained to dismiss Court Enc. No. 91 with costs to be paid forthwith by the 2nd to 4th and 6th Defendants to the Plaintiffs.

 

WONG KIAN KHEONG

 

Judicial Commissioner High Court (Commercial Division) Kuala Lumpur

 

DATE: 1 OCTOBER 2015

 

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Counsel for Plaintiffs: Mr. Kumar Kanasalingam, Mr. Bahari Yeow, Mr. Yee Mei Ken and Ms. Ho Ai Ting (Messrs Lee Hishammuddin Allen & Gledhill)

 

Counsel for 2nd to 4th and 6th Defendants: Mr. S. Sivaneindran, Mr. Mr. K.L Pang, Cik Puteri Shehnaz Majid and Ms. Shasha Ravindran (Messrs Cheah Teh & Su)

 

Counsel for 5th Defendant: Cik Nor Emelia bt. Mohd. Shariff (Messrs Arianti Dipendra Jeremiah)

 

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