VT SINGHAM J

5 MAY 2003

CIVIL PROCEDURE:Contempt of court - Committal proceedings - Leave to commence committal proceedings - Alleged breach of order of court - Whether proven - Whether complaints tantamount to widening scope of order of court - Whether terms of court order ambiguous - Whether there was a prima facie case of contempt for leave to be granted

CIVIL PROCEDURE:Contempt of court - Committal proceedings - Leave to commence committal proceedings - Ex parte application - Presence of alleged contemnor's counsel in an ex parte notice of motion - Whether irregular - Whether there was a prima facie case of contempt - Whether costs to be ordered against unsuccessful applicant in an ex parte application

The plaintiffs, by an ex partenotice of motion (encl. 45), applied for leave to commence committal proceedings for an alleged breach of an injunction, being an order of court dated 12 September 2002 against the defendants no. 2-6 ('the defendants') and that they be committed to imprisonment for having committed contempt of court. It was the plaintiffs' complaint that the defendants have collected thousands of ringgit by way of cash, open cheques and uncrossed third party cheques from the customers of the first defendant company and have credited all these payments into their secret account videMalayan Banking Berhad and thereafter have used the said monies collected for their personal use to avoid being traced and to circumvent the interim order which was given by this court.

The issues were: (1) whether counsel for the alleged contemnor could be heard in the ex parteapplication for leave to commence committal proceedings for alleged breach of an order of court where the ex parteapplication was not served on the alleged contemnor or his solicitors; (2) whether the applicants/plaintiffs have raised or demonstrated a prima faciecase of contempt against the defendants for leave to be granted; (3) whether the court has the discretion to grant permission to counsel for the alleged contemnor to address the court on the ex parteapplication and (4) whether costs can be ordered against an unsuccessful applicant in the ex parteapplication for leave where the alleged contemnor or his counsel attends court of his own volition.

Held:

[1]Although the plaintiffs' application for leave was made ex parte,there was nothing irregular for the said defendants' counsel to be present in court where the said defendants became aware of this application, and if necessary to assist the court if called upon even in an ex parteapplication. In any event, the ex parteapplication in this instant case was not converted into an inter partehearing when the said defendants' counsel was granted permission to address the court. (p 91 c-d)

[2]The plaintiffs must demonstrate a prima faciecase of contempt and that the express terms of the order have been breached. To extend or widen the terms of the court order for the convenience of the plaintiffs so as to obtain leave to commence committal proceedings seems to be an "unwarrantable stretch of judicial authority". In this case, the court is satisfied that the complaints so presented by the plaintiffs was tantamount to widening the scope of the said order of court which is not this court's function in an ex parteapplication for leave. The terms of the order of the court did not prohibit the defendants to open another bank account or to collect monies and pay into this account or to use those monies for themselves as alleged. The terms of the order of court dated 12 September 2002 are expressly clear and not ambiguous and there can be no extended or distorted interpretation given as parties are only bound by the terms of the said order. Hence, the said complaints raised by the plaintiffs did not show that the express terms as stipulated in the said order of court have been breached by the defendants. (pp 93 d & 95 a-c & 96 g)

[3]This court did not take into consideration the affidavit filed on behalf of the defendants. Firstl