JUDGMENT OF ZALEHA ZAHARI, JCA

I have read the judgment in draft of my brother, Dato' Abdul Malik Ishak, and would like to state my reasons for dismissing this appeal.

In this judgment parties will referred to as they appear in the High Court.

By civil suit filed on 13.10.1993 PT Indo Food Interna Corp (the 1st Plaintiff), and PT Sanmaru Food Manufacturing Co (the 2nd Plaintiff), applied for the following orders: The Defendants to take all necessary steps to record the transfer of "Indomie" trade to the Plaintiffs in accordance with Deed Assignment dated 26.9.1990. Delivery up of products bearing the trade marks "Indomie", "Top Mie", "Pop Mie", "Nutrimi-Yin Duo" (in Chinese) and "Indomie Mi Goreng" by the Defendants to the Plaintiffs. Delivery up of all samples, pamphlets, advertising material and other material documents and papers whatsoever sent to the Defendants by the Plaintiffs and relating to the Plaintiffs' business which the Defendants may have in their possession or control including all separate books of accounts and record kept or maintained by the Defendants. The Defendants be restrained from selling or in any way dealing with products of the Plaintiffs bearing the trade marks "Indomie", "Top Mie", "Pop Mie", "Nutrimi-Yin Duo" (in Chinese) and "Indomie Mi Goreng". Damages with interest at 8% per annum from 13.10.1993 to the date of realization.

Judgment in default of defence was entered against Far East Food Industries Sdn Bhd (in liquidation) (the 1st Defendant), on 12.5.1994 for failure to file a defence. The 1st Defendant has been wound up by Order of Court dated 17.10.1997 and the Official Receiver appointed as Liquidator. The 1st Defendant has taken no part in the trial and is not a party to this appeal.

Several interlocutory applications were filed by both parties prior to trial of which the following requires mention. On 22.10.2002, the Plaintiffs' solicitors filed an application on behalf of the 1st and 2nd Plaintiffs and P.T. Indofood Sukses Makmur Tbk ("Sukses Makmur") to substitute Sukses Makmur for the 1st and 2nd Plaintiffs, on the ground that Sukses Makmur had taken over all of the rights and liabilities of the 1st and 2nd Plaintiffs pursuant to a merger in Indonesia in 1994.

The 2nd and 3rd Defendants opposed this application for substitution on the ground that there was insufficient evidence before the Court and therefore unclear as to what were the rights, obligations, assets and liabilities of the 1st and 2nd Plaintiffs which had been transferred to Sukses Makmur under the merger. This application to substitute Sukses Makmur for the 1st and 2nd Plaintiffs was dismissed by the Court on 25.4.2005. It is common ground that the appeal against this decision of the High Court dated 25.4.2005 to the Court of Appeal was subsequently withdrawn by the Plaintiffs.

Having failed in the application for substitution, Sukses Makmur then, on 26.6.2005, filed an application under O. 15 of the Rules of the High Court 1980 (the Rules) to be joined as a Plaintiff to the action, which application was also opposed by the 2nd and 3rd Defendants. The High Court vide order dated 20.7.2005 allowed this application and Sukses Makmur was joined as a party to the action as the 3rd Plaintiff. The 2nd and 3rd Defendant's appeal against this decision of the High Court dated 20.7.2005 to the Court of Appeal vide Appeal No. W-02-968-2005, was dismissed. The Court of Appeal ruled that the issue of joinder should be determined at trial.

The Plaintiffs' claim for the assignment of trade Mark No. M/100816, S/32614 and No. SAR/27,663 for the "Indomie" mark (collectively referred to as "the Indomie" mark) in Class 30 in Malaysia from the 2nd Defendant to the 1st Plaintiff is based on the following grounds. The 2nd Defendant pursuant to the Deed of Assignment dated 26.9.1990 (the Deed of Assignment) had agreed to assign the "Indomie" mark to the 1st Plaintiff for a consideration of 10 dollars. Alternatively the 2nd and 3rd Defendants ho

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