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2020 MarsdenLR 3436
HIGH COURT (KUALA LUMPUR)
AHMAD KAMAL BIN MD. SHAHID, J
Datoâ Sri Andrew Kam Tal Yeow – Plaintiff
Versus
Tan Sri Datoâ Kam Woon Wah & Ors – Defendant
GUAMAN NO: WA-22NCC-352-09/2017
Mathew Thomas Philip (Nicholas Navaron Chula with him) (Thomas Philip) for the Plaintiff/Applicant.
Datoâ Seri Gopal Sri Ram (Y.C Wong, David Yii Hee Kiet and Yarmeen Soh Sha Nisse with him) (Y.C Wong) for the Proposed Contemnor: First Defendant, Chew Tee Beng and Tai Swe Chong (Enclosure 320 and 323).
Datoâ Lim Choon Khim (Chin Yan Len with him) (Chooi Saw & Lim) for the Proposed Contemnor: Edward Kam Tai Keong and Linda Kam Thai Eng (Enclosure 325 and 328).
Mandatory compliance with procedural rules in contempt proceedings must be adhered to, particularly regarding the notice to show cause requirement under Order 52 r. 2B of the Rules of Court 2012.
Headnote:(A) Rules of Court 2012 - Order 52 - Applications for leave to commence committal proceedings - Ex parte orders granted by the court were deemed invalid due to non-compliance with mandatory procedural requirements. The court emphasized that a notice to show cause must be served prior to filing for contempt in cases classified as other contempt, as per Order 52 r. 2B. (Paras 26, 48)
(B) Contempt of court - Classification - The breach of a court order is categorized as a contempt committed in other cases, thus requiring adherence to prescribed procedures for contempt proceedings. (Paras 35, 39)
Facts of the case:
The Plaintiff/Applicant sought to enforce a judicial injunction against the Proposed Contemnors. Applications to set aside previous ex parte orders were filed by the Proposed Contemnors citing procedural issues and the validity of the contempt allegations.
Findings of Court:
The court identified that the applications filed by the Plaintiff/Applicant did not comply with normal procedural requirements and ruled that the ex parte leave orders were invalid.
Issues: The main issues addressed included non-compliance with procedural rules, suppression of material facts, inordinate delay, and allegations of abuse of process.
Ratio Decidendi: The court held that failure to issue a notice to show cause prior to filing applications for contempt constituted a serious flaw in the process, compromising the validity of the proceedings.
Result: The applications to set aside the leave orders were allowed, and costs were awarded to the Proposed Contemnors.
| Table of Content |
|---|
| 1. introduction of applications for committal proceedings. (Para 1 , 1 , 2 , 3 , 4 , 5 , 6) |
| 2. arguments regarding procedure and disclosures in proceedings. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 17 , 18 , 19 , 21 , 22 , 23 , 24) |
| 3. court's analysis and conclusions on contempt proceedings. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 45 , 46 , 47 , 49 , 50 , 51) |
| 4. court's final ruling and orders. (Para 52) |
[1]There are four (4) applications (encl. 320, 323, 325 and. 328) filed by the Proposed Contemnors to set aside the ex parte orders dated 12.12.2019 granting leave to the Plaintiff/Applicant to commence committal proceedings against the Proposed Contemnors.
Background Facts
[2]On 12.12.2019, the Plaintiff/Applicant had obtained an ex parte order (encl. 313) granting leave to the Plaintiff/Applicant to commence committal proceedings against the followings Proposed Contemnors:
a.Tan Sri Datoâ Kam Woon Wah as the director of the Second Defendant;
b.Chew Tee Beng as the director of the Second and Third Defendant;
c.Tai Swe Chong as the director of the Third Defendant;
d.Linda Kam Thai Eng as the director of the Second and Third Defendant; and
e.Edward Kam Tai Keong as the directors of the Second and the Third Defendant.
[3]On the same day, the Plaintiff/Applicant had also obtained another an ex parte order (encl. 314) granting leave to the Plaintiff/Applicant to commence committal proceedings against Tan Sri Datoâ Kam Woon Wah as the director of the Eighth Defendant.
[4]The Plaintiff/Applicantâs applications for leave to commence committal proceedings (encl. 297 and encl. 300) are based on the ground that the Proposed Contemnors had disobeyed the interim injunction order dated 29.3.2018 (interim injunction order) which restrains the Defendants from removing the Plaintiff/Applicant as a director of the Second to Eleventh Defendants.
[5]It is the Plaintiff/Applicantâs contentions that all the Proposed Contemnors had breached the interim injunction order by refusing to recognise the Plaintiff/Applicant as a director and by taking the position that the Plaintiff/ Applicant has retired as a director of the Second to Eleventh Defendants.
[6]Upon being served with the relevant cause papers, the Proposed Contemnors then filed the following applications:
a.The Proposed Contemnors Tan Sri Datoâ Kam Woon Wah filed Notice of Application dated 8.1.2020 (encl. 320) to set aside encl. 314;
b.The Proposed Contemnors Tan Sri Datoâ Kam Woon Wah, Chew Tee Beng and Tai Swe Chong filed Notice of Application dated 8.1.2020 (encl. 323) to set aside encl. 313;
c.The Proposed Contemnors Edward Kam Tai Keong filed Notice of Application dated 13.1.2020 (encl. 325) to set aside encl. 313; and
d.The Proposed Contemners Linda Kam Thai Eng filed Notice of Application dated 13.1.2020 (encl. 328) to set aside encl. 313.
Parties Submissions
[7]Based on the Proposed Contemnersâ applications and written submissions, the Proposed Contemners had raised four main grounds to set aside encl. 313 and encl. 314 and it can be summarized as follows:
a.Non-compliance with Order 52 r. 2B of the Rules of Court 2012 ( ROC 2012);
b.Non-disclosure/suppression of material facts in the Plaintiff/Applicantâs ex-parte application for leave (encl. 297 and encl. 300);
c.Inordinate delay in filing encl. 297 and encl. 300; and
d.Encl. 297 and encl. 300 were filed due to a collateral purpose and constitute an abuse of the courtâs process.
[8]However, during the course of oral submissions, parties had confined its submissions to two issues which are non-compliance with Order 52 r. 2B of the ROC 2012 and non-disclosure/suppression of material facts in filing encl. 297 and encl. 300.
a. Non-Compliance with Order 52 r 28 of the ROC 2012
[9]It is the contentions of the Proposed Contemners that encl. 313 and encl. 314 ought to be set aside ex debito justitiae due to the failure of the Plaintiff/Applicant to issue the notic
