Gopal Sri Ram JCA:

[1] In the course of hearing an application for the extension of an injunction - I presume that it was a Mareva injunction, for there is nothing in the judgment that gives any indication as to what kind of injunction it was - Ian Chin J, made a remark about the quality of the defence delivered by the respondents (the 2nd to the 9th defendants in the Court below). I will advert to the remark in a moment. It led to the respondents making an application to disqualify the learned Judge from hearing the trial of the action. He acceded to their request; but, as will appear later, not for any of the reasons advanced by the respondents. The appellant (the plaintiff in the Court below) being dissatisfied with the decision of the learned Judge appelaed to this Court.

[2] This is what the learned Judge said in relation to one of the issues raised in the respondents' defence:

Mr Sugumar Balakrishnan next argued that the plaintiff does not have a good arguable case. It will be recalled that the plaintiff's case is that through the fraud or conspiracy of the defendants or the breach of trust or fiduciary duty of the 1st defendant the defendants have profited from the RM7,681,000 which the plaintiff had released through the accounts of the 2nd to the 6th defendants. He argued that the sum of RM7,681,000 was given to the 2nd to the 6th defendants as a temporary overdraft. I had at the hearing interjected and asked Counsel what was the term of the temporary overdraft, like for how long and for what amount. He was not able to answer. What we have here is this. The plaintiff's case is that over a period of about 12 months, the 1st defendant had caused cheques to be marked and regarded cheques as good for payments when he should not with the result that the plaintiff lost RM7,681,000 and the 2nd to the 6th defendants are the direct beneficiaries of the proceeds while the 7th to 9th defendants are also beneficiaries of part of these proceeds. The 2nd to the 6th defendants case appear (sic) to be that they have an indefinite, as opposed to temporary, overdraft for an unlimited amount from the plaintiff and that the said RM7,681,000 is part of the overdraft; which defence, to say the least, is inherently incredible. Given the defence advanced and which I have just adversely commented on, I cannot see how it can be said that the plaintiff does not have an arguable case.

[4] Now, nothing that was said by this Court in Keet Gerald (supra) is to be taken as detracting from the right, and indeed the duty, of a Judge, in appropriate cases, to undertake a qualitative analysis of the affidavit evidence presented before him. In a case like the present I can do no better than to adopt the words of Lee Hun Hoe CJ (Borneo) in Syed Ibrahim bin Syed Abdul Rahman, [1984] 1 MLJ 160 where he said:

The onus of the caveator, prompted by the analogy with interlocutory injunction, is that before any question of balance of convenience can arise the party seeking the injunction must satisfy the Court that his claim is neither frivolous nor vexatious in other words that the evidence before the Court discloses a serious question to be tried. Not all disputes of fact necessarily raise serious questions to be tried. It is of course quite right to say that it is undesirable to resolve disputes on affidavit evidence. Yet Judges are expected in applying the test to be critical of the affidavit evidence which must on the face be at least plausible.