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2025 MarsdenLR 2144
HIGH COURT MALAYA GEORGETOWN
BADAN PENGURUSAN BERSAMA GURNEY PARAGON RESIDENTIAL – Appellant
Versus
HUNZA PROPERTIES (GURNEY) SDN BHD & ORS – Respondent
[Civil Suit No: PA-22NCVC-247-12/2017]
The court established that contempt may arise from actions that interfere with the administration of justice, despite a lack of prohibitive terms in the judgment, and outlined procedural requirements for committal applications under specific rules.
Headnote:(A) Rules of Court 2012 - Order 45 r 5 - Order 42 r 6(1) - Application to set aside Leave Order for committal proceedings - Court considered whether judgment compels specific action from party - Judgment merely dismissed plaintiff's claims and did not contain injunctive terms nor specified time for action - Prima facie case for contempt established based on acts contrary to the judgment, including issuing charges and contributions to parties not liable - Court rules procedural safeguards for committal do not require indorsed penal notice as claimed - Application dismissed with costs. (Paras 10, 26, 45, 63)
Facts of the case:
Defendants sought committal of plaintiff for contempt, alleging disregard of court’s judgment that dismissed plaintiff’s claims regarding maintenance charges against defendants, who were not liable for such charges. Plaintiff argued that judgment did not compel action and lacked penal notice.
Findings of Court:
The court found that the issuance of charges and contributions to the defendants constituted prima facie evidence of contempt and disregarded the judgment.
Issues: Whether the judgment compelled action from the plaintiff and whether procedural safeguards were followed in the application for committal.
Ratio Decidendi: The court ruled that contempt can arise from conduct interfering with court administration, regardless of express prohibitions in the judgment. No requirement for a penal notice in the context of applying for committal under specific rules for contempt applications.
Result: Application to set aside the Leave Order dismissed with costs to defendants.
| Table of Content |
|---|
| 1. application filed for committal. (Para 1 , 2 , 3) |
| 2. counsel's retraction of claims. (Para 4 , 5 , 6) |
| 3. judgment not enforceable by committal. (Para 7 , 8) |
| 4. prima facie case for contempt. (Para 10 , 11 , 12) |
| 5. evidence of acts contrary to judgment. (Para 14 , 15 , 16 , 17) |
| 6. types of contemptuous conduct. (Para 18 , 19 , 20 , 21 , 22) |
| 7. interference with the administration of justice. (Para 24 , 25 , 26 , 27 , 28) |
| 8. judgment must specify performance time. (Para 30 , 31) |
| 9. requirement for penal notice in committal proceedings. (Para 32 , 33 , 34 , 35) |
| 10. distinction in procedural requirements. (Para 38 , 39 , 41 , 42) |
| 11. importance of goj in understanding judgment. (Para 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 12. non-disclosure of facts not sufficient to set aside. (Para 54 , 56) |
| 13. claims made by p regarding abuse of process. (Para 58 , 59 , 60 , 61 , 62) |
Prelusion
[1] I delivered a post-trial judgment in this case on 26 June 2024 (Judgment). I then gave my written grounds of judgment on 18 September 2024 (GOJ).
[2] On 27 January 2025, the 1st to 3rd Defendants (Ds) filed an ex parte application for leave to commence committal proceedings against the Plaintiff (P), which is the joint management body (Application for leave). On 6 March 2025, I granted Ds the leave to apply for a committal order (Leave Order).
[3] P is the alleged contemnor. P now applies to set aside the Leave Order.
P's Grounds To Set Aside The Leave Order
[4] P presents these grounds to set aside the Leave Order.
Non-Service Of The Judgment On The Committee Members Of P
[5] At the start of oral submissions, P raised the issue that the Judgment was not served on the committee members of P's joint management committee. But later, when it was pointed out that P did not raise this as an issue to be determined for the Application for leave, and that P did not raise the averment of fact that the committee members were not personally served with the Judgment, P's counsel forthrightly informed me that P is dropping this point ie retracting this issue as a ground to set aside the Leave Order.
[6] This is commendable, because, instead of the conduct of counsel that I sometimes see, that is, counsel raising all manner of issues, or as many issues as they can possibly conceive, P's counsel here facilitated the reduction and the narrowing down of the issues argued, in order to save time and costs.
Nothing In The Judgment To Be Enforced Ie There Was No Counterclaim Against P
[7] P argues that the Judgment (delivered on 26 June 2024, with the GOJ given on 18 September 2024) is not a Judgment that compels P to do or to abstain from doing an act. P argues that in the Judgment, I merely dismissed P's claim, which contained many prayers for various reliefs and remedies.
[8] As such, P argues, the Judgment cannot be enforced by way of O 45 r 5 of the Rules Of Court 2012 ( ROC ).
[9] The pertinent portions of O 45 r 5 are set out here for reference:
Enforcement of judgment to do or abstain from doing an act (O 45, r 5)
5. (1) Where:
(a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under O 3 r 5; or
(b) a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to these Rules, the judgment or order may be enforced by one or more of the following means:
(A) with the leave of the Court, an order of committal;
(B) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;...
My Finding
[10] P's argument can be reworded in this way: the Judgment does not prohibit P from performing any specific act. This means that there can be no breach of the terms of the Judgment by the performance of any act. Hence, leave should not be given for Ds to commence committal proceedings against P, as P did not
