Azizan Md Arshad J:

GROUNDS OF JUDGMENT

(ENCLOSURE 36 - APPEAL TO JUDGE IN CHAMBERS)

INTRODUCTION

[1]On 03.04.2024, the Garnishee (Respondent) filed an application (Enclosure 7) to strike out the Appelant’s (Plaintiff) Notice of Application (Ex- Parte) dated 23.02.2024 and to set aside the Order to Show Cause dated 06.03.2024 on the ground that the application (Enclosure 1) is res judicata.

[2]Not satisfied with the decision, an appeal was filed to the High Court.

This Court on 26th of June 2025 has affirmed the decision of the Learned Deputy Registrar (DR) and dismissed the appeal with costs.

[3]The Plaintiff has once again filed an appeal on 23rd of July 2025, to the Court of Appeal (COA) against the decision of this Court. Parties are refered to as they were in High Court.

BACKGROUND FACTS

[4]The involved parties have depended on the case facts, and the Court has acknowledged the undisputed facts, reiterating the same details that were presented and referenced according to the Grounds of Judgment prepared by the Learned DR dated 27.09.2024.

(i) Main Judgment- 22-413-2010

[5]In this case the Plaintiff/Judgment Creditor (JC) has made a claim against the Defendants based on a contract dated 06.02.2005 which the terms among others, are that the First Defendant to pay to the Plaintiff a consultant fee of 5% of the total sales made by the First Defendant to TESCO Stores (M) Sdn. Bhd. The First Defendant paid the fee for 8 months and then failed to pay it as agreed in the contract.

[6]On 11.9.2015 this Court gave judgment in favour of the Plaintiff/JC and ordered as follows:

High Court:

(a)The Defendants to pay the Plaintiff RM19,266,746.16.

(b)The Defendants to pay interest at the rate of 4% per annum on the amount of the judgment from the date of filing of the suit until the date of judgment and at the rate of 5% per annum from the date of judgment until full settlement.

(c)The Defendants are also ordered to pay costs of RM30.000 to the Plaintiff.

Court Of Appeal:

This appeal arose from the decision of the High Court which had allowed the respondent’s claim against the appellants for the sum of RM 19,266,746.16 together with interest. The decision of the High Court is affirmed by the Court of Appeal.

The Federal Court:

On 17.08. 2017, the Federal Court has granted the Defendants leave to appeal on the following leave questions:

Leave question (i)

Whether a contract for payment of commission may last in perpetuity without being subject to an implied term as to termination upon reasonable notice?

Leave question (ii)

Whether in determining the quantum of damages payable for breach of contract for the payment of a commission in perpetuity is to be assessed in accordance with the decisions in Hadley v Baxendale (1854) 9 Exch 341; [1843-60] All ER Rep 461 and Transfield Shipping Inc v Mercator Shipping Inc s 74Contracts Act 1950

The appeal is dismissed and the decision of the Court of Appeal is affirmed.

(see ANANDA KUMAR A/L KRISHNAN V NG CHIN TAI (TRADING IN THE NAME AND STYLE OF LEAN SEH FISHERY) NG CHIN TAI (TRADING IN THE NAME AND STYLE OF LEAN SEH FISHERY) & ANOR V ANANDA KUMAR A/L KRISHNAN )

(ii) The First Garnishee Proceeding

[7]On 13.10.2015, the JC filed a Garnishee Proceedings against Tesco Stores Malaysia Sdn Bhd (later known as Lotus’s Stores Malaysia Sdn Bhd) (The First Garnishee Proceedings). On 18.01.2016, the matter was fixed before the learned Judicial Commissioner (JC) who inter alia ordered that the affidavits filed be taken as pleadings for purposes of the trial pursuant to Order 49 Rule 5 of the Rules of Court 2012. The matter was set for trial on 11.04.2016. The Garnishee Application was heard and decided by Justice Dato’ Abdul Wahab bin Mohamed after full trial. This resulted in a Garnishee Order Absolute being entered against the Garnishee on 02.07.2016 for the sum of RM3,179,014.47 together with costs of RM10.000.00.

[8]On 25.07.2016, Tesco Stores being dissatisfied with the decision, appealed to the Court of Appeal. The appeal was then