JUDGMENT

Gopal Sri Ram JCA:

The appellant in this case, having obtained an Anton Pillar order ex parte against the respondent, was unable to sustain it inter partes. The learned Judge who set aside the order directed an inquiry into damages that may have been sustained by the respondent pursuant to the undertaking that had been given by the appellant when it obtained the Anton Pillar injunction. The appellant's appeal against the discharge of the order was dismissed by the Supreme Court. See, Syarikat Telekom Malaysia Bhd. v. Business Chinese Directory Sdn. Bhd. [1994] 2 CLJ 729 ; [1994] 2 CLJ 729 . The learned Judge then proceeded to conduct an inquiry into the issue of damages. The facts relevant to this part of the case appear sufficiently in his judgment and we find it unnecessary to reproduce them here.

The respondent supported its case by way of affidavit evidence. The appellant then applied by a summons returnable in Chambers for leave to cross-examine the deponent of the respondent's affidavit. This was in accordance with the procedure laid down by Mohamed Azmi J (as he then was) in Choo Kim San v. Malaysia Borneo Finance Corpn. (M) Bhd. [1976] 1 MLJ 37.

The learned Judge refused the application to cross-examine. It was then open to the appellant to appeal against the refusal. The appellant did not, however, do that. Instead, it filed a notice of intention to cross-examine, but quite rightly did not go forward on that notice. We say "quite rightly" because the learned Judge having refused the summons to cross-examine, it was not open to him to review that decision. (See, Hartecon JV Sdn. Bhd. v. Hartela Contractors Ltd. [1996] 2 MLJ 57.) So, the hearing proceeded on affidavit evidence.

The principles that govern a case of this nature, where a Court is called upon to make a determination based on affidavit evidence, are well-settled and free from any doubt. In Syed Ibrahim bin Syed Abdul Rahman v. Liew Su Chin [1984] 1 MLJ 160, 163, Lee Hun Hoe CJ (Borneo), when delivering the judgment of the former Federal Court, said:

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.

As Lord Diplock said in Eng Mee Yong's case (Eng Mee Yong v. Letchumanan [1979] 2 MLJ 212) at p. 217:

... In making such order on the application as he 'may think just' the Judge is vested with a discretion which he must exercise judicially. It is for him to determine in the first instance whether statements contained in affidavits that are relied upon as raising a conflict of evidence upon a relevant fact have sufficient prima facie plausibility to merit further investigation as to their truth.

Since it is a matter upon which the opinions of individual Judges may reasonably differ, an appellate Court ought not to interfere with the Judge's exercise of his discretion under s. 327 of the National Land Code unless the way in which he exercised it is shown to have been manifestly wrong ...

In Tay Bok Choon V. Tahansan Sdn. Bhd [1987] CLJ 24 (Rep), Lord Templeman said:

At the end of the day the Judge must decide the petition on the evidence before him. If allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent's affidavits, then in the absence of oral evidence or cross-examination, the Judge must ignore the disputed allegations.

The Judge must then decide the fate of the petition by consideration of the undisputed facts.

Now, the observations in the foregoing cases although made in other contexts - the first in the context of the removal of a caveat and the second in the context of a petition to wind up a company - are of general application and are not in any way to be treated as restricted to the circumstances of the particular case.

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