IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION) CIVIL SUIT NO 22IP-49-2009
PLASTECH INDUSTRIAL SYSTEMS SDN BHD … PLAINTIFF
1. N&C RESOURCES SDN BHD
2. CHUAH TEIK HUAT
3. KENNY YONG KUET WEE
4. NGA POH CHOO … DEFENDANTS
GROUNDS OF JUDGMENT
A. THE APPLICATION:
1. The Third Defendant applied in enclosure 72 and which was filed 18.4.2013, pursuant to Order 32 rule 6 read together with Order 45 rules 5 and 7 and Order 52 rules 3 and 4 of the Rules of Court 2012 for the following orders –
1.1 that the Ex-Parte Order dated 9.8.2012 be set aside forthwith insofar as it relates to the 3rd Defendant;
1.2 that consequently, the Notice of Application dated 22.8.2012 enclosure 36A be struck out insofar as it relates to the 3rd Defendant;
B. THE FACTS:
2. On the 6.10.2011, the learned Judge Dato’ Azahar bin Mohamed had given judgment in favour of the Plaintiff against the First, Second, Third and Fourth Defendants for breach of the Plaintiff’s copyright in some photographs and catalogues, amongst others (“the Judgment”). Further, on 25.11.2011, the learned Judge gave another order in favour of the Plaintiff against the same Defendants wherein the learned Judge ordered that the mould is to be placed with a third party to be mutually agreed by the parties; the costs of the storage will be borne by the Plaintiff with liberty to the Plaintiff to apply to recover the storage costs of the mould should the appeal be dismissed (“the Order”). The Defendant’s appeal was dismissed on 17.5.2012 by the Court of Appeal.
3. The Plaintiff filed an Ex-Parte Application for leave to commence committal proceedings against all the Defendants vide enclosure 44 on 19.6.2012. The Defendants were alleged to have failed to comply with paragraph 2 (a) – (d) of the Judgment dated 6.10.2011 and Order dated 25.11.2011. As such it was alleged that the Defendants were in contempt of the same Judgment and Order.
4. On 9.8.2012, the Court granted leave to commence committal proceedings against all the Defendants for contempt of the Court’s Judgment and Order (“the Ex-Parte Order”).
5. On 22.8.2012, the Plaintiff filed the substantive application for contempt of court vide enclosure 36A.
6. On the 18.4.2013, the Third Defendant filed this enclosure 72 to set aside the Ex-Parte Order. The Third Defendant stated two grounds in support of this application, they are –
6.1 the Plaintiff had failed to serve the Judgment and the Order personally on the Third Defendant ;and
6.2 the Plaintiff had failed to highlight to this Court during hearing on 9.8.2012 that the Judgment and Order were not served personally on the Third Defendant when the Ex-Parte Order was sought for and granted.
C. THE DECISION
7. I dismiss the Third Defendant’s application with costs at RM3000.00 which shall be paid within three weeks from 12.7.2013. I do so for the following reasons.
7.1 The Third Defendant had constructive knowledge and notice of the terms of the Judgment dated 6.10.2011 and Order dated 25.11.2011 notwithstanding that the same were not served on the Third Defendant personally.
7.2 The Third Defendant’s constructive knowledge of the same is evinced by the fact that he and the other Defendants had formally applied for a stay of the Judgment vide Summons in Chambers dated 13.10.2011. In support of the Defendants’ application for stay of the same, the Third Defendant had affirmed an affidavit dated 13.10.2011 on behalf of himself and the other Defendants whereby the Third Defendant had sworn on oath in paragraph 5.1 (1) -(6) setting out the whole terms of the Judgment verbatim.
7.3 Further, the Third Defendant at all material times was represented by solicitors and must have been given legal advice on every step of these proceedings.
7.4 I agree with the learned Plaintiff solicitor’s submission that the Third Defendant’s enclosure 72 application is an after thought. It would appear this application was filed to delay the committal proceedings against the Third Defendant in enclosure 36A. By the Third Defendant’s own action I find that he had waived his right to object to the Ex-Parte Order dated 9.8.2012. This was because the Third Defendant had proceeded to file two affidavits in enclosures 63 affirmed on 23.1.2013
and 71 affirmed on 2.3.2013 to oppose the Plaintiff’s application for committal proceedings in enclosure 36A. I find that there was no objection raised by the Third Defendant that the Plaintiff had failed to serve the Judgment and the Order personally on him. The Third Defendant had also failed to inform the Court during case management dated 29.1.2013 and 4.3.2013 in respect of enclosure 36A application that the Third Defendant intended to file this application to set aside the Ex-Parte Order.
7.5 Moreover, Order 45 r.7 (7) of the Rules of Court 2012 permits the Court to dispense with service of a copy of an order under this rule if it thinks it just to do so. In this instance, I am of the view that personal service of the Judgment and the Order on the Third Defendant is dispensed with in view of the Third Defendant’s obvious earlier knowledge of them when he had affirmed his affidavit dated 13.10.2011 (see Madlis Azid & Ors v. Chua Yung Kim & Ors  2 CLJ 110).
( DATO’ UMI KALTHUM BINTI ABD. MAJID )
High Court (Commercial Division)
Solicitor for Plaintiff
Mr. Justin T. Y. Voon and Mr. Lee Chooi Peng Messrs Justin Voon Chooi & Wing D6-5-13A, Bangunan Perdagangan D6 801, Jalan Sentul 51000 Kuala Lumpur
Solicitor for First and Forth Defendants
Mr. Clinton Nicholas Gomez Messrs Rajinder Singh Veriah & Co.
No. 19, Jalan Bangsar 59100 Kuala Lumpur
Solicitors for Third Defendant
Ms. Victoria Loi Tien Fen Messrs Shook Lin & Bok 20th Floor, Ambank Group Building 55, Jalan Raja Chulan 50200 Kuala Lumpur.