Enforcement of a consent order via contempt proceedings requires strict adherence to procedural safeguards; failure to do so may lead to dismissal of the application.

(Court Encl Nos 31 And 38)

A. Introduction

[1] This case discusses whether a party to a consent order may enforce a consent order by way of contempt of Court proceedings when:-

(a) there is no tendency to interfere with the due administration of justice or to subvert the course of justice in connection with legal proceedings;

(b) there is no necessity to maintain or vindicate the authority of the Court;

(c) the applicant for committal proceedings (Applicant) did not comply with certain "procedural safeguards" which are intended to protect the alleged contemnor; and

(d) there is an alternative avenue for the Applicant.

B. Background

[2] The Applicant is an individual who has filed this suit (This Suit) on 16 January 2013 against the following parties:

(a) the first and second defendant companies (1^st and 2^nd Defendants); and

(b) the third to fifth individual defendants (3^rd, 4^th and 5^th Defendants).

[3] On 13 March 2013, all the parties in This Suit entered into a consent order (Consent Order) which reads as follows:

"i. The [Applicant] and his duly appointed qualified auditor are entitled to inspect the accounts of the 1^st Defendant and to take photocopies for the period from 2004 to 2012 (if available) provided that the auditor furnishes an undertaking on terms as set out in s 167(6) of the Companies Act 1965 [ CA ] (the Undertaking)

[Paragraph (i)].

ii. The Undertaking is to be furnished to the Court.

iii. The [Applicant] undertakes not to divulge the contents of the 1^st Defendant's accounts to any third party.

[Paragraph (iii)]

iv. Parties are at liberty to apply.

v. No order as to costs.

vi. The ad interim injunction order dated 6^th February 2013 stands discharged.

[Paragraph (vi)]"

(emphasis added).

[4] In the Consent Order, there was an endorsement purportedly made under O 45 r 7 of the Rules of 2012 (RC) which stated as follows (Purported Endorsement):

"If you [Applicant] and/or your servants, officers and/or agents and/or the [Applicant's] auditors disobey this order, you will be liable to process of execution for the purpose of compelling you to obey the same."

(emphasis added).

I use the description Purported Endorsement because under the Purported Endorsement, there was no:-

(a) name and signature of the High Court's Senior Assistant Registrar; and

(b) seal of the High Court.

[5] Pursuant to the Consent Order, the Applicant has engaged Messrs Crowe Horwarh (Messrs CH) to inspect the 1^st Defendant's accounts for the period from 2004 to 2012. On 9 July 2013, Messrs CH prepared an "Investigative Audit Report" (CH's Report).

[6] After CH's Report has been obtained by the Applicant, the Applicant filed a winding up petition against the 1^st Defendant in Kuala Lumpur High Court (Winding Up) Petition No 28NCC-509-05/2013 (Applicant's Winding Up Petition) to wind up the 1^st Defendant under s 218(1)(f) and (i) CA . CH's Report was adduced by the Applicant in support of the Applicant's Winding Up Petition. On 29 January 2014, Hanipah Farikullah J dismissed the Applicant's Winding Up Petition with costs (Dismissal of Applicant's Winding Up Petition). The Applicant has appealed to the Court of Appeal against the Dismissal of Applicant's Winding Up Petition (Applicant's Appeal) and the Applicant's Appeal is pending.

[7] On 8 May 2014 the Applicant appointed Messrs Alan Yoon Associates (Messrs AYA) to "finish up the outstanding matters" in the CH's Report.

[8] In This Suit, the Applicant was initially represented by Messrs Patrick Dass & Co (Messrs PD). On 30 May 2014, the Applicant appointed Messrs Dennis Nik & Wong (Messrs DNW) as his solicitors to replace Messrs PD.

[9] Messrs DNW, on the Applicant's instruction, sent a letter dated