Gopal Sri Ram JCA:

[1] This morning we had before us two notices of motion seeking to stay an injunction granted by the High Court on 14 April 2008 in the following terms:

An Order that the 17th Defendant to the Amended Counterclaim (Naluri Corporation Bhd), whether by itself, its subsidiaries, servants agents or otherwise, howsoever, be restrained from completing the proposed:

(a) Disposal details of which appear in paragraph 2.1 of the Announcement dated 5.1.2007 made by Aseambankers Malaysia Berhad on behalf of the 17th defendant to the counterclaim or any similar or other proposal for the disposal of the Business of the 17th defendant to the Amended Counterclaim;

(b) Capital Repayment details of which appear in paragraph 2.2 of the Announcement dated 5.1.2007 made by Aseambankers Malaysia Berhad on behalf of the 17th Defendant to the Counterclaim or any similar or other proposal for the return of a substantial amount of Capital to shareholders of the 17th Defendant to the Amended Counterclaim.

[2] With the consent of counsel we treated the motions as appeals proper in the interests of justice. The facts which lie at the heart of the dispute between the parties are complex and the case has a long history. Many of the parties who were defendants in the court below are not before us. The present appeal is brought by only three defendants in the court below, namely, the 17th, 18th and 19th defendants. The basis of the claim of the plaintiff (respondent before us) is that the 17th defendant proposes to dispose off its assets and thereby frustrate any judgment the plaintiff may obtain. After lengthy argument over several days lasting about one year, the learned judge acceded to the plaintiff's summons and made the orders aforesaid.

[3] Insofar as the 17th defendant is concerned, the main thrust of its argument in support of its appeal is that all the impugned transactions that form the basis of the plaintiff's complaint in the main action were done by special administrators appointed by Pengurusan Danaharta Nasional Bhd, the 1st defendant in the court below. Accordingly, the 17th defendant did nothing to injure the plaintiff. These submissions are borne out by the plaintiff's own pleaded case. In particular, the following three paragraphs are relevant:

(a) paragraph 180 at p 247 of the record of appeal:

Regarding the capital repayment under the tender it was represented that the Special Administrators (SAs) have decided it is the best interests of all stakeholders of Naluri for Naluri to proceed with a capital repayment of at least RM690,516,320.00 on the basis of RM1.00 per share. Tajudin contends that the Sas should not have been concerned 'the best interests of all stakeholders of Naluri' and in so doing were acting in breach of their duties and ultra vires the provisions of the Danaharta Agreement.

(b) paragraph 215 p 258 of the record of appeal:

The Naluri shares SPA, Naluri Acquisition, SHB Investment, SHB Property Acquisition and capital repayment formed part of the purported 'workout proposal' proposed and implemented by the SAs over Naluri Bhd despite the fact that Naluri itself did not owe any money to Danaharta.

(c) paragraph 232 at p 267 of the record of appeal:

The SAs of Naluri have entered into and completed a series of transactions known as the 'SHB Property Acquisition', the 'SHB Investment' and the 'UL Group Acquisition' for a total cost of RM437,380,000.00.

[4] We are in agreement with the submissions of learned counsel for the 17th defendant. The plaintiff's case as pleaded in the foregoing paragraphs speaks for itself. As may be seen, the main complaint is levelled against the special administrators and not against the 17th defendant.

[5] The 2nd ground on which the 17th as well as the 18th and 19th defendants support their respective appeals is the absence of an undertaking as to damages from the plaintiff when obtaining its injunction. It is clear from the arguments from the learned counsel for th