1. PACKIAM HAROLD J A/L ABRAHAM J KANDER (NO. K/P: 550625-08-6155) 2. SHIRLEY LIM SWEE LIN (NO. K/P: 690405-07-5790) 3. CHOW SIEW MENG (NO. K/P: 700226-08-5551) 4. NGOI GUAT EE (NO. K/P: 671125-10-5082) 5. EWE SEE HAI (NO. K/P: 630226-06-55

1. PACKIAM HAROLD J A/L ABRAHAM J KANDER (NO. K/P: 550625-08-6155) 2. SHIRLEY LIM SWEE LIN (NO. K/P: 690405-07-5790) 3. CHOW SIEW MENG (NO. K/P: 700226-08-5551) 4. NGOI GUAT EE (NO. K/P: 671125-10-5082) 5. EWE SEE HAI (NO. K/P: 630226-06-55

The High Court exercised its discretion under Order 38 r.2(2) Rules of Court 2012 to permit plaintiffs to cross-examine the deponent because the affidavit raised disputed and relevant facts about the defendant's financial position and penalties that could not be satisfactorily resolved from affidavits and contemporaneous audited accounts alone; the application was made in good faith and cross-examination would not unfairly prejudice the deponent.

Citation
WA-22NCVC-81-02/2017 (Mahkamah Tinggi)
Parties
Appellant/defendant: Perantara Properties Sdn. Bhd.; Respondents/plaintiffs: Packiam Harold J A/L Abraham J Kander & Ors.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
16 October 2019
Case Number
WA-22NCVC-81-02/2017 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal Arising From High Court Interlocutory Application / Appeal Against High Court Order Allowing Cross Examination on Affidavit
Outcome
High Court allowed the plaintiffs' application to cross-examine the deponent and made ancillary orders against the defendant
Legal Topics
Cross Examination on Affidavits, Committal Proceedings, Specific Performance Enforcement, Impecuniosity/insolvency, Quasi Contractual/contract Compliance
Source Language
Malay/English
Civil Procedure Property Law Company Law Strata Title Law Cross Examination on Affidavits Committal Proceedings Specific Performance Enforcement Impecuniosity/insolvency +1 more

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Parties

Perantara Properties Sdn. Bhd.

Appellant/defendant

Packiam Harold J A/L Abraham J Kander & Ors.

Respondents/plaintiffs

Procedural Posture

Civil Appeal Arising From High Court Interlocutory Application / Appeal Against High Court Order Allowing Cross Examination on Affidavit

Legal Issues

  1. 1 Whether plaintiffs are entitled to cross-examine the deponent on his affidavit under Order 38 rule 2(2) Rules of Court 2012
  2. 2 Whether the defendant’s asserted financial incapacity excuses non-compliance with the amended judgment
  3. 3 Whether the court should exclude the affidavit if the deponent fails to attend for cross-examination

Ratio Decidendi

The High Court exercised its discretion under Order 38 r.2(2) Rules of Court 2012 to permit plaintiffs to cross-examine the deponent because the affidavit raised disputed and relevant facts about the defendant's financial position and penalties that could not be satisfactorily resolved from affidavits and contemporaneous audited accounts alone; the application was made in good faith and cross-examination would not unfairly prejudice the deponent.

Court Disposition

High Court allowed the plaintiffs' application to cross-examine the deponent and made ancillary orders against the defendant

Orders

  • Permission granted to plaintiffs to cross-examine Leow Thang Fong on his affidavit dated 1.4.2019 filed for hearing of the plaintiffs' application
  • Defendant to produce Leow Thang Fong for full cross-examination at the defendant's own expense