JUDGMENT

Noradura Hamzah JC:

(Enclosure 16 - Plaintiff's Application For Leave To Commence Committal Proceedings)

Introduction

[1] Enclosure 16 is the Plaintiff's ex parte application under O 52 r 3 andO 92 r 4 of the Rules of 2012 ("ROC 2012") for leave to commence committal proceedings against the defendant and its two directors, for alleged disobedience of cl 1 of the Pre-Action Discovery Order dated 13 October 2024 ("the Order"). I shall refer to the defendant and the two directors collectively as "the alleged contemnors".

Background Facts

[2] The material facts are largely undisputed. The plaintiff appointed the defendant as design-and-build contractor for a housing project known as Taman Seri Molek Perdana ("the Project") in 2007. The plaintiff terminated the defendant in 2019. On taking over the project the plaintiff says it found incomplete sale records, missing sale and purchase agreements and competing claims to units. Several purchasers, on receiving termination notices, asserted that they had paid the defendant directly and produced receipts. The plaintiff, unable to verify those payments, filed this originating summons for pre-action discovery under O 24 r 7A of the ROC 2012 on 24 May 2024.

[3] On 13 October 2024 the Court granted the order. Clause 1 of the order required the defendant, its servants and/or agents, within seven (7) days from the date of the Order, to file an affidavit stating whether the documents specified in "Schedule A" to the Order are or were in their possession, custody and control and if not, since when and what had become of them.

[4] The order bore three penal endorsements under O 45 r 7 ROC 2012, addressed respectively to the defendant and to each of the two directors, Chok Kim Sin (NRIC NO.: 611007-05-5139) and Liang Kuai Heng (NRIC NO.: 610327-06-5278), by name.

[5] The plaintiff's evidence as to service is as follows. On 15 October 2024 the plaintiff emailed a covering letter and a draft of the Order to the defendant's then solicitors. The sealed order was filed on 21 October 2024 (encl 15) and emailed to the defendant's then solicitors on 22 October 2024. The plaintiff did not at any time effect personal service of the order on the defendant or on either director.

[6] The plaintiff filed encl 16 on 8 November 2024. On 10 December 2024 the defendant's present solicitors filed a Notice of Change of Solicitors and a List of Documents (encl 20), comprising some 790 pages relating to 27 units, with an affidavit verifying that list (encl 33). The defendant maintained, both in encl 21 and at the case management on 11 December 2024, that the order concerned 317 units and over 500 documents dating back to 2007, that it had traced and filed what it could and that full compliance within seven days was not possible.

[7] The defendant was wound up on 20 March 2025. By directions given on 30 September 2025 and 19 May 2026 the plaintiff filed supplementary submissions (encls 31 and 36) addressing the position of the directors and the effect of the winding up.

The Law

[8] An application for committal proceeds in two stages:

(a) leave under O 52 r 3 ROC 2012; and

(b) if leave is granted, the substantive committal application.

[9] At the leave stage, the applicant must show a prima facie case of contempt. The exercise is an ex parte vetting process and the Court does not at this stage decide the merits. [See: Dato' Oon Ah Baa & Ors v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors; [2003] 7 CLJ 81, Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd & Ors; [2015] 4 CLJ 113, Dewan Perniagaan Melayu Malaysia Negeri Johor v. Menteri Besar Johor & Ors; [2016] 7 MLJ 1; [2016] 1 CLJ 52 and Foo Khoon Long v. Foo Khoon Wong; [2009] 9 MLJ 441].

[10] The threshold is not high. But committal is quasi-criminal in character, for it touches the liberty of the subject and the procedural safeguards built into the rules require strict compliance. [See: Tan Sri Dato' Dr Rozali Ismail & Ors v. Lim Pang Cheong & Ors; [2012] 3 MLJ 458;