SINOHYDRO CORPORATION (M) SDN BHD KAJ DEVELOPMENT SDN BHD

SINOHYDRO CORPORATION (M) SDN BHD KAJ DEVELOPMENT SDN BHD

The Court held Sinohydro complied with the specific disclosure requirements of O.47 r.6(c); the matters the High Court treated as material non-disclosures were not required by that rule and were not material for the ex parte issuance of a PO under the enforcement regime. A secured creditor is not precluded from pursuing available execution remedies; the stay granted suspended execution only and did not nullify the substratum for the PO. Accordingly the High Court erred in setting aside the PO and the Deputy Registrar's order is to be restored.

Citation
W-03(IM)-17-03/2023 (Mahkamah Rayuan)
Parties
Appellant / Judgment Creditor: Sinohydro Corporation (M) Sdn Bhd; Respondent / Judgment Debtor: KAJ Development Sdn Bhd
Court
IM
Jurisdiction
Malaysia
Judgment Date
2 May 2023
Case Number
W-03(IM)-17-03/2023 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (execution / Enforcement of Adjudication Decision) / Court of Appeal Judgment on Appeal From High Court (decision on Setting Aside Ex Parte Prohibitory Order)
Outcome
Appeal allowed. High Court order dated 10-3-2023 set aside and Deputy Registrar's order dated 20-1-2023 restored. Costs awarded to appellant.
Legal Topics
Prohibitory Order, Writ of Seizure and Sale, Order 47 R.6 Rules of Court 2012, Disclosure/non Disclosure in Ex Parte Applications, Enforcement of Adjudication Decision Under CIPAA, Stay of Execution
Source Language
Malay/English
Civil Procedure Enforcement of Judgment Construction Law Arbitration Insolvency / Winding Up Prohibitory Order Writ of Seizure and Sale Order 47 R.6 Rules of Court 2012 +3 more

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Parties

Sinohydro Corporation (M) Sdn Bhd

Appellant / Judgment Creditor

KAJ Development Sdn Bhd

Respondent / Judgment Debtor

Procedural Posture

Civil Appeal (execution / Enforcement of Adjudication Decision) / Court of Appeal Judgment on Appeal From High Court (decision on Setting Aside Ex Parte Prohibitory Order)

Legal Issues

  1. 1 Whether Sinohydro made material non-disclosures in its ex parte application warranting discharge of the Prohibitory Order
  2. 2 Whether the affidavit complied with O.47 r.6(c) of the Rules of Court 2012
  3. 3 Whether a secured creditor is precluded from using general execution remedies against unencumbered assets of the judgment debtor

Ratio Decidendi

The Court held Sinohydro complied with the specific disclosure requirements of O.47 r.6(c); the matters the High Court treated as material non-disclosures were not required by that rule and were not material for the ex parte issuance of a PO under the enforcement regime. A secured creditor is not precluded from pursuing available execution remedies; the stay granted suspended execution only and did not nullify the substratum for the PO. Accordingly the High Court erred in setting aside the PO and the Deputy Registrar's order is to be restored.

Court Disposition

Appeal allowed. High Court order dated 10-3-2023 set aside and Deputy Registrar's order dated 20-1-2023 restored. Costs awarded to appellant.

Orders

  • Set aside High Court order dated 10-3-2023
  • Restore Deputy Registrar's order dated 20-1-2023