JUDGMENT

Saiful Azian Mokhtar JC:

Introduction

[1] Enclosure 117 is the defendant/judgment debtor's Notice of Appeal to Judge in Chambers against the decision of the learned Senior Assistant Registrar ("SAR") allowing the plaintiff/judgment creditor's application for an order imposing charge on securities ("charging order") over 750,000 shares belonging to the defendant/judgment debtor pursuant to O 50 of the Rules of , 2012 ("ROC").

[2] On 27 February 2025, this Court dismissed Encl 117 with costs and these are the grounds. In this judgment, parties will be referred to as in their original capacity, namely as plaintiff and defendant.

Background Facts

[3] The plaintiff filed this present Suit against the defendant on the ground that the defendant had committed a fundamental breach of the Deed of Settlement dated 3 January 2023 entered between them.

[4] On 16 August 2024, this Court entered summary judgment against the defendant in the sum of RM5,000,000.00 together with interest and costs. The defendant had appealed against the said decision to the Court of Appeal, which appeal is still pending.

[5] Pursuant to the summary judgment, the plaintiff took out several execution proceedings to recover the judgment sum, one of which was a charging order over 750,000 shares in Southsea Gold Sdn Bhd ("the Company") registered in the name of the defendant.

[6] In compliance with O 50 r 50 ROC, the plaintiff obtained the Order Imposing Charge On Securities: Order To Show Cause dated 11 September 2024 (Encl 67) ("Show Cause Order").

[7] On 25 November 2024, the learned SAR ordered that the said 750,000 shares be charged in order to recover payment of the judgment sum. Being dissatisfied with the said decision, Encl 117 was filed.

Grounds For Appeal

[8] The Federal Court in Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215 held that appeals from decisions of the Registrar to a Judge in Chambers are by way of a rehearing. The judge treats the matter as though it comes before him or her for the first time.

[9] The defendant relied on the following grounds in his appeal to Judge in Chambers, as follows:

(i) The plaintiff failed to serve the plaintiff's Affidavit in Support and the Show Cause Order on the defendant by way of personal service;

(ii) The plaintiff's application for the charging order was excessive, unfair, unjust and unreasonable; and

(iii) The defendant was prejudiced.

[10] Before proceeding further, it is worthwhile to state that the burden lies on the defendant to show cause as to why such charging order should not be made absolute. The applicable principles have been succinctly set out by Abdul Malik Ishak J in Bank Bumiputra Malaysia Berhad Cawangan Johor Bahru v. Cheong Yoke Choy; Malaysian Central Depository Sdn Bhd (Intervener); [2000] 7 MLJ 323; [2000] 7 CLJ 157; [2000] 3 AMR 2544.

Analysis And Findings By Court

Whether There Is A Legal Requirement For The Plaintiff To Serve The Plaintiff's Affidavit In Support And The Show Cause Order On The Defendant By Way Of Personal Service?

[11] Learned Counsel for the defendant argued that the learned SAR had erred in law and facts when she granted the order absolute when it was obvious that the defendant was not personally served with both the plaintiff's Affidavit in Support and the Show Cause Order. It was further argued that the failure to effect personal service of the said documents on the defendant at least seven (7) clear days before the hearing date violates, inter alia, O 50 r 4 ROC on the basis that the defendant was not given the opportunity to address or show cause in relation to the application.

[12] O 50 r 4 ROC reads as follows:

4. Service of notice of order to show cause (O 50 r 4)

(1) Unless the Court otherwise directs, a copy of the order under r 2 to show cause shall, at least seven days before the time appointed thereby for the further consideration of the matter, be served on the judgment debtor, and if he