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2012 MarsdenLR 197
COURT OF APPEAL PUTRAJAYA
TAN SRI G DARSHAN SINGH – Appellant
Versus
TETUAN AZAM LIM & PANG – Respondent
[Civil Appeal No: W-02(IM)-567-03-2012]
Full and frank disclosure is essential in ex parte applications for committal proceedings; failure to disclose relevant facts justifies setting aside such orders.
Headnote:(A) Rules of the High Court 1980 - Order 52 - Committal Proceedings - High court dismissed the appellant's motion for contempt against the garnishee and set aside the ex parte order allowing committal proceedings. The court found that full and frank disclosures were not made when seeking the ex parte order. (Paras 6, 10, 18)
(B) Disclosure and Transparency - An application for leave to commence committal proceedings requires strict compliance and full disclosure of relevant facts. The non-disclosure of critical facts led to the court's decision in favor of the garnishee. (Paras 13, 15)
Facts of the case:
The appellant sought to hold the garnishee in contempt for releasing funds while the garnishment order was pending. The learned judge concluded the applicant had failed to disclose significant facts about the judgment debtor and the context of the garnishment. (Paras 1-7)
Findings of Court:
The learned judge's discretion was affirmed as appropriate given the circumstances around the disclosure deficiencies; the appeal against setting aside of leave for committal proceedings was dismissed. (Paras 18, 19)
Issues: Whether the appellant made sufficient disclosures when applying for committal proceedings; whether the ex parte leave should be set aside. (Paras 4, 6)
Ratio Decidendi: The court emphasized the necessity of full disclosure in ex parte applications for committal proceedings to ensure fairness, ruling that non-disclosure justified setting aside the ex parte order. (Paras 15, 18)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. dismissal of the appellant's motion (Para 1 , 1) |
| 2. errors claimed by the appellant in trial court decision (Para 2 , 3) |
| 3. sequence of appeals to be considered (Para 4 , 5) |
| 4. grounds for setting aside the ex parte order (Para 6 , 7 , 8 , 9 , 10) |
| 5. legal safeguards in committal proceedings (Para 11 , 12 , 13 , 14 , 15) |
| 6. misleading the court on the leave for committal (Para 16 , 17) |
[1] The appellant Tan Sri Darshan Singh appealed to this court against the decision of the High court on 10 February 2012 where that court:
(a) Dismissed the appellant's Notice of Motion under O 52 r 3(1) of the Rules of the High court 1980 at encl 70 to commit the respondent/ garnishee (hereinafter the garnishee) for contempt of court; and
(b) Allowed the garnishee's application at encl 73 to set aside the ex parte order at encl 69 pursuant to O 52 r 2(2) made on 23 November 2011 granting leave to commence committal proceedings.
The Memorandum Of Appeal
[2] In his Memorandum of Appeal, the appellant asserted that the learned judge erred in law and in fact as follows:
(a) In setting aside encl 69 which is the ex parte application of the appellant for leave to commit the respondent.
(b) In holding that the plaintiff had failed to make full and frank disclosures.
(c) When after having granted the leave to apply for an order of committal in encl 69, ought to have considered the merits of the committal application in encl 70 (inter parte Notice of Committal).
(d) In failing to consider:
(i) That the respondent had, by affidavit sworn by Lim Chong Leong on 5 December 2008, confirmed that a sum of RM703,160.30 was held by the respondent as stakeholder sum.
(ii) The letter from the Ministry of Housing and Local Government dated 8 December 2011 that confirms all the stakeholder sums pertaining to the said 1st judgment debtor as the developer for the said Housing Project.
(iii) That the respondent had released the stakeholder sums to the 2nd judgment debtor after the appellant had served the garnishment Order To Show Cause dated 9 September 2008 (hereinafter referred to as "the said Garnishment Order") on the respondent.
(iv) The respondent's letter dated 13 May 2011 which confirms the stand taken by the respondent in releasing the stakeholder sums to the 2nd judgment debtor.
(v) That the respondent ought to have retained sufficient sum out of the garnishment sum to satisfy the appellant's judgment dated 24. January 2008.
(vi) That the 2nd judgment debtor had filed an Intervener Application dated 28 October 2008 to intervene in the garnishee proceedings and which the 2nd judgment debtor later withdrew the said application after receiving the stakeholder sums from the respondent and before the conclusion of the garnishee proceedings.
(vii) That the respondent ought to have sought the directions of the court pursuant to O 49 rr 5 and 6(1) of the Rules of the High court 1980 in the garnishment proceedings itself before releasing the garnishment sum to the 2nd judgment debtor who had already filed an Intervener Application against the garnishment sum.
(e) In considering irrelevant facts and failing to consider relevant facts.
The Submissions For The Appellant
[3] The written submission for the appellant began with a brief introduction and then proceeded to merits of the appeal, principles of appellate interference, background facts, nature of encl 70, reasons why the appeal should be allowed before proceeding to conclusions where it was submitted:
"35. It is respectfully submitted that the appellant had made full and frank disclosure as the O 52 statement contained sufficient information as to what the alleged breach was to enable the respondent to meet the allegations against it.
36 ... it is pertinent to note that in Chandra Sri Ram v. Murray Hiebert [1997] 1 MLRH 669 , [1997] 3 MLJ 240 at p 253 para G (TAB14) the court held: ... Further, the court went on to adopt Lord Woolf MR's judgment in Nicholls v. Nicholls [1997] 147 NLJ 61........
37. Based on the above,
