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2025 MarsdenLR 5996
HIGH COURT MALAYA KUALA LUMPUR
TAN MEI LI & ORS – Appellant
Versus
BLUEFIRE DEVELOPMENT SDN BHD & ANOR – Respondent
[Civil Suit No: 22NCC-200-06/2014]
Procedural defects in ex parte applications for committal proceedings cannot be remedied by subsequent trial findings; strict adherence to procedural requirements is essential for maintaining judicial integrity.
Headnote:(A) Rules of Court 2012 - Order 42 Rule 13 and Order 40A - Application to set aside an ex parte leave order for committal proceedings due to alleged fabrication of evidence. The 2nd Defendant claimed procedural defects in expert evidence compliance and lack of full disclosure. (Paras 8-11, 15, 25)
(B) Principles for setting aside ex parte orders require strict adherence to procedural requirements, emphasizing that all evidence and facts must be presented fully and fairly. (Paras 15-19)
(C) The integrity of the committal process necessitates that subsequent trial findings cannot rectify initial procedural defects in the ex parte application. (Paras 31-39)
(D) The committal proceedings were ultimately deemed academic as the underlying trial had concluded. (Paras 45, 46)
Findings of Court:
The ex parte order was set aside due to compliance failures and the assertion that the trial findings could not validate procedural integrity.
Result: Application allowed with no costs awarded.
| Table of Content |
|---|
| 1. ex parte leave procedure and factual background (Para 1 , 2 , 3 , 4 , 5 , 6 , 7) |
| 2. arguments of 2nd defendant against ex parte order (Para 8 , 9 , 10 , 11) |
| 3. plaintiffs' arguments supporting the ex parte order (Para 12 , 13 , 14) |
| 4. principles for setting aside ex parte leave in committal (Para 15 , 16 , 17 , 18 , 19) |
| 5. non-compliance with expert report requirements (Para 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 6. lack of full and frank disclosure in the ex parte application (Para 27 , 28 , 29 , 30 , 31) |
| 7. no prima facie case established for contempt (Para 32 , 33) |
| 8. impact of trial findings on committal proceedings (Para 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 9. academic nature of committal proceedings post-trial (Para 45 , 46) |
| 10. conclusion on application and procedural integrity (Para 48) |
[1] This was the 2nd Defendant's application dated 1 December 2015 (encl 181) filed pursuant to O 42 r 13 of the Rules of Court 2012 to set aside the ex parte leave order dated 4 November 2015 granting the plaintiffs leave to commence committal proceedings against the 2nd Defendant ("this Application").
[2] This Application was only heard in April 2024, after the trial of the action had concluded and a decision had been delivered on 16 August 2021, by which time the learned trial judge had been elevated to the Court of Appeal.
A] Salient Background Facts
[3] On 21 September 2015, the plaintiffs had applied ex parte for leave to commence committal proceedings against the 2nd Defendant via encl 146, supported by a Statement pursuant to O 52 r 3(2) of the Rules of Court 2012 dated 14 September 2015 (encl 145) and an Affidavit in Support affirmed by Tan Mei Li on 15 September 2015 (encl 147).
[4] The ex parte order granting leave was obtained on 4 November 2015. This Application (encl 181) was filed on 1 December 2015, within 30 days from the granting of the ex parte order, in compliance with O 42 r 13 of the Rules of Court 2012.
[5] The committal proceedings arose from allegations that the 2nd Defendant had fabricated evidence by deleting certain paragraphs from an email attachment/letter ("the Letter"), creating what the plaintiffs termed as the "2nd Defendant's Version" which differed from the "plaintiffs' Version" of the same document.
[6] The Plaintiffs relied on expert reports from Cybersecurity Malaysia dated 1 April 2014, PwC Consulting Services (M) Sdn Bhd dated 14 September 2015, and Nexia TS Technology Pte Ltd dated 17 September 2015 to support their allegation of fabricated evidence.
[7] Subsequently, the trial was heard before Justice Has Zanah binti Mehat (as she then was), who delivered judgment in favour of the plaintiffs on 16 August 2019.
B] 2nd Defendant's Arguments
[8] The 2nd Defendant contended that the ex parte order ought to be set aside on the following grounds:
i) the plaintiffs' expert reports failed to comply with O 40A of the Rules of Court 2012, specifically the requirements for expert evidence under O 40A r 3;
ii) There was no full and frank disclosure by the plaintiffs of material facts in the ex parte application.
[9] The 2nd Defendant submitted that the requirements of O 40A r 3 of the Rules of Court 2012 necessitate strict compliance, and that the expert reports exhibited in the plaintiffs' affidavits did not meet the prescribed formalities.
[10] The 2nd Defendant argued that the plaintiffs failed to disclose material facts in their ex parte application, particularly that the Cyber Security Report did not state certain conclusions that the plaintiffs attributed to it in the O 52 Statement.
[11] The 2nd Defendant relied on the Court of Appeal decision in Tan Sri G Darshan Singh v. Tetuan Azam Lim & Pang ; [2013] 1 CLJ 1060 (CA) , emphasising that committal proceedings are mandatory in nature and if the process of Court was wrongly used to obtain the ex parte order for leave, leave will be set aside.
C] Plaintiffs' Arguments
[12] The Plaintiffs argued that the 2nd Defendant's
