Arifin Zakaria J:

On 24 July 2000 this court granted an ex parteinjunction order ("the Order") prohibiting the defendant, its agents or servants from using the name "Tiger Powerhitz" in the following concerts sponsored and carried out by the defendant on:

(i) 27 July 2000 at the Dewan Jubli Man (Baru) Segamat;

(ii) 29 July 2000 at SJK @ Tuan Poon School;

(iii) 30 July 2000 at Dewan Raya Gelang Patah, Gelang Patah, Johor; and

(iv) 3 August 2000 at Hokkien Association Hulu Klang,

or in charity show, event, presentation in any manner carried out by the defendant using the name "Tiger Powerhitz." The plaintiff alleged that the defendant failed to comply with the Order by:

(a) placing advertisements in the Sin Chew Jit Poh and Quang Ming Daily on 27 July 2000, and

(b) publishing a magazine entitled "Tiger Powerhitz" on 28 July 2000.

On 30 November 2001, the plaintiff obtained an ex parteorder from this court for leave to institute contempt proceedings against Michael Daniel Van Der Poel, one of the directors of the defendant company, for breach of the Order.

On 24 January 2002, the defendant and Micheal Daniel Van Der Poel ("the alleged contemnor") filed an application (encl. 47) to set aside the Order dated 30 November 2001. The said application and the plaintiff's notice of motion were heard together. After hearing submissions of counsel for the parties I allowed the the said application with costs and struck out the plaintiff's notice of motion with no order as to costs.

My grounds for allowing the defendant's and the alleged contemnor's application are as follows.

The Alleged Contemnor Was Not Personally Served With A Copy Of The Order.

Order 45 r. 7(3)(a) Rules of the High Court ("the RHC") 1980states that an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in O. 45 r. 5(ii) and (iii)unless a copy of the order has been served personally on the officers against whose property leave is sought to issue a writ of seizure and sale or against whom an order for committal is sought. It was contended for the defendant and the alleged contemnor that the defendant and the alleged contemnor were never personally served with the Order and as such the defendant and the alleged contemnor had no notice of the terms of the Order. Further it is common ground that the alleged contemnor was not present when the Order was made; and nor was he ever notified of the terms of the order, either by telephone, telegram or otherwise. It is also not in dispute that the alleged contemnor was away in Australia on his annual leave during the period between 18 July 2000 to 8 August 2000 during which the order was made by the court. Thus, on the facts before me I find the plaintiff failed to satisfy this court that the alleged contemnor had been notified of the terms of the order by telephone or telegram or he was otherwise made aware of the terms of the Order.

In his submission the learned counsel for the plaintiff sought to rely on the case of Class One Video Distributors Sdn Bhd & Anor v. Chanan Singh Sher Singh[1997] 3 CLJ 694where at p. 700 Haidar Mohd Noor J, (as he then was) said:

In this case though the Order was not personally served on the second defendant, I am satisfied that the second defendant having had the benefit of Counsel's advice, is deemed to know the terms of the Order. In any event the second defendant did not deny that he had no knowledge of the terms of the Order. The word 'otherwise' in r. 7(6) would be wide enough to cover this situation.

I find that the facts of the abovementioned case can be distinguished from the present case as the alleged contemnor here had categorically denied knowledge of the terms of the Order and further he had also expressly stated in his affidavit (encl. 46) that he was not notified by his solicitors of the terms of the Order.

Similarly with the Privy Council case of Datuk Hong Kim Sui v. Tiu Shi Kian & Anor[1987] 1 CLJ 438; ([1987] CLJ (Rep) 1)