Aliza Sulaiman J:

GROUNDS OF JUDGMENTIntroduction

[1]This is an application by the Plaintiff pursuant to the order of the Court dated 27.10.2022 granting leave on an ex-parte basis to the Plaintiff to commence committal proceedings against the Defendant and/ or O.52, r. 4 of the Rules of Court 2012 (‘RC 2012’), s 13Courts of Judicature Act 1964Act 91] (‘CJA 1964’), Article 126 of the Federal Constitution and/ or the inherent jurisdiction of the Court for an order that the Defendant and the Defendant’s directors named Pang Sar; The Cheng Eng and The Kun Ann (‘Alleged Contemnors’) be found guilty of contempt of court in disobeying the Order of the Court of Appeal dated 26.4.2022 (‘CA Stay Order’) and/ or conduct amounting to an interference with the due administration of justice –

(a)by failing and/ or refusing to instruct the Defendant’s solicitors, Messrs. Harold & Lam Partnership (‘Messrs. HLP’) to remove the Amended Prohibitory Order dated 3.3.2020 (‘Amended PO’) that was obtained at the Kuala Lumpur High Court vide Application for Execution No. WA-36-5-01/2020 (‘AE No. 5’) that is lodged on the Plaintiff’s land known as Hakmilik No. PN 51515, Lot No. 20003, Seksyen 92A, Bandar Kuala Lumpur, Wilayah Persekutuan (‘Land’) (hereinafter referred to as the ‘1st Breach’); and

(b)by instructing Messrs. HLP to file an Application to Extend the Amended Prohibitory Order dated 16.6.2022 (‘Application to Extend the Amended PO’) vide AE No. 5 at the Kuala Lumpur High Court to extend the validity of the Amended PO for another six months from 3.9.2022 until 2.3.2023 (hereinafter referred to as the ‘2nd Breach’).

[2]The application was heard on 11.4.2023. After considering the cause papers and the oral and written submissions by the learned counsels representing the Plaintiff, Cik Masturina, and the Defendant, Dato’ Arthur Wang, the Court had dismissed the application with costs of RM10,000.00.

[3]The Plaintiff is aggrieved with the decision and I now provide my full grounds of judgment.

The Cause Papers

[4]The cause papers are as follows:

(a)Notice of Application dated 3.11.2022 (‘NoA’, encl. 52);

(b)the Plaintiff’s Notice of Intention to Use Affidavit (encl. 43) dated 3.11.2022 (encl. 53);

(c)the Defendant’s Affidavit in Reply (‘AIR’) affirmed by its Senior General Manager, Ng Heng Heem on 21.11.2022 (encl. 55); and

(d)the Plaintiff’s AIR affirmed by its Chief Executive Officer, Nor Mohd Amin Bin Hj. Shaharudin on 8.12.2022 (encl. 56).

Background Facts

[5]On 21.6.2019, the learned Adjudicator, Mr. Rajendra Navaratnam delivered an Adjudication Decision allowing the Defendant’s claim against the Plaintiff under the Construction Industry Payment and Adjudication Act 2012 [Act 746]. A Supplemental Adjudication Decision was delivered on 7.8.2019 (hereinafter collectively referred to as the ‘AD’).

[6]This Court had, on 29.11.2019, allowed the Defendant’s application to enforce the AD and dismissed the Plaintiff’s application to set aside and stay the AD (‘29.11.2019 Decision’; see Econpile (M) Sdn Bhd v. ASM Development (KL) Sdn Bhd [2020] MLRHU 899;

[7]On 28.1.2020, the Defendant filed a Writ of Seizure and Sale (‘WSS’) vide AE No. 5 against the Land to satisfy the judgment sum of RM60,129,153.72.

[8]On the same date, the Defendant filed an ex-parte application under O. 46, r. 7 RC 2012

[9]Subsequently, on 21.5.2020, the Defendant filed an ex-parte application to amend the Prohibitory Order. This application was allowed by the High Court on 18.6.2020.

[10]On 4.8.2020, the Defendant filed an application for (i) an order for sale of the Land by public auction; (ii) the public auction to be held on 24.5.2021 at 9.00 a.m. at the High Court Kuala Lumpur; and (iii) the reserve price for the Land to be fixed at RM250 million. The learned Deputy Registrar (‘DR’) allowed the application on 11.3.2021.

[11]Meanwhile, on 13.10.2020, the Plaintiff filed an application (i) for an order to set aside the WSS and the Amended PO; (ii) for the Land to be released according to O.