Statements in affidavits must be proven untrue to be considered scandalous; relevance to the proceedings negates claims of scandalousness.

JUDGMENT

Aliza Sulaiman J:

Introduction

[1] This is an application by MRCB Builders Sdn Bhd ('D1') pursuant to O. 41, r 6 or O 92, r 4 of the Rules of 2012 ('RC 2012') for, among others,:

(a) a declaration that paras 13.5 to 13.7 ('Said Paragraphs) together with the exhibit marked as "BGMC-27" ('Said Exhibit') annexed in the Plaintiff's Affidavit in Reply ('AIR') affirmed by Dato' Teh Kok Lee dated 3 August 2020 (encl 19) are scandalous, irrelevant and otherwise oppressive against D1; and

(b) an order that:

(i) the Said Paragraphs and Said Exhibit be expunged or struck out; and

(ii) the Said Paragraphs are redacted.

[2] After having considered the cause papers and the oral and written submissions of the parties, I had dismissed D1's application. These are my full grounds of judgment for purposes of the appeal which has been filed by D1.

The Cause Papers

[3] The cause papers are as follows:

(a) D1's Notice of Application dated 20 March 2024 (encl 66);

(b) D1 's Affidavit In Support ('AIS') affirmed by its Director, Lok Ngai Hey on 20 March 2024 (encl 67);

(c) the Plaintiff's Affidavit In Reply ('AIR') affirmed by its Director, Dato' Teh Kok Lee on 5 April 2024 (encl 68); and

(d) D1's AIR affirmed by the same deponent on 18 April 2024 (encl 69).

Background Facts

[4] The suit commenced on 27 May 2020 with the filing of the Originating Summons ('O.S.', encl 1) where the Plaintiff sought, among others, for an injunction to restrain D1 from receiving any amount under the Performance Bonds ('PB') for the commercial development at Jalan Tun Sambanthan, Kuala Lumpur. I allowed the Plaintiff's application on 16 April 2021. D1's appeal against my decision was dismissed by the Court of Appeal on 13 January 2023. D1 did not file any motion to the Federal Court for leave to appeal against the decision by the Court of Appeal. The background facts which are relevant to encl 1 can be found in my judgment in BGMC Corporation Sdn Bhd v. MRCB Builders Sdn Bhd & Ors (encls 1 2 3 4 5 6 7 9 15 16 19 20 21 22 23 24 25 26 27 28 29 41 & 43).

[5] On 8 July 2020, the Plaintiff filed a suit against S&S Quest Resources Sdn Bhd ('SSQR') in the Kuala Lumpur High Court Civil Suit No: WA- 22NCvC-373-03/2020 ('Suit 373'). The Plaintiff had appointed SSQR by way of a Work Order dated 25 June 2016 to provide consultancy services in relation to the Stadium Bukit Jalil Project for the consideration of RM2,650,000.00 including GST.

[6] According to the Plaintiff, the claim was filed after it discovered, among others, the familial relationship between SSQR's Director, Shamrat Sen Gupta and the members of D1's management board.

[7] The reliefs sought by the Plaintiff in Suit 373 are, among others, for:

(a) a declaration that the Project Management Consultations were null and void, there was a failure of consideration by SSQR and SSQR has been unjustly enriched for the sum of RM2,544,000.00;

(b) an order for the Defendant to reimburse the sum of RM2,544,000.00 to the Plaintiff; and

(c) general damages to be assessed by the Court .

[8] On 3 August 2020, the Plaintiff filed its AIR in encl 19 to explain the significance of the relationship between D1 and SSQR and to show to the Court as to why D1 had unlawfully and abruptly terminated the contract and unconscionably made a demand on the PB. However, D1 alleged that the Plaintiff had, in bad faith, exhibited the Writ and Statement of Claim ('SoC') of Suit 373 in the Said Exhibit in encl 19 to make scandalous, irrelevant and oppressive statements against, among others, D1. These statements are now the subject of the instant application for expungement.

[9] The impugned statements in the Said Paragraphs are as follows:

"13.5 Selain dan selanjutnya, proses due diligence yang dilakukan oleh peguamcara Plaintif turut mendapati bahawa seorang Bernama Shamrat Sen Gupta yang merepresentasi bahawa beliau mewakili Defendan Pertama dalam Projek Stadium Bukit Jalil tersebut telah mengarahkan Plaintif untuk melantik sebuah syarikat bernama S&S Que