IBC TOURS CORPORATION (MALAYSIA) SDN BHD GO & AWAY TRAVEL TOURISM SDN BHD

WA-24NCC-301-06/2025 Kand. 34 09/01/2026 15:44:26 IN THE STATE OF WILAYAH PERSEKUTUAN AT KUALA LUMPUR IN THE STATE OF WILAYAH PERSEKUTUAN KUALA LUMPUR (COMMERCIAL DIVISION) ORIGINATING SUMMON NO:.WA-24NCC-301-06/2025 In the matter of Companies Winding Up of IBC Tours Corporation (Malaysia) Sdn Bhd (No Syarikat: 199301009508 (264245-K) And In the matter of Statutory Notice dated 28.04.2025 And In the matter of Section 465 and 466 Companies Act 2016 And In the matter of Section 42 Specific Relief Act 1950. And S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal In the matter of Section 25 Court of Judicature Act 1964 and Order 92 Rule 4, Rules of Court 2012. And In the matter of Order 29, Order 88, Rules of Court 2012. BETWEEN IBC TOURS CORPORATION (MALAYSIA) SDN BHD (No.Syarikat: 199301009508 (264245-K)) ... PLAINTIFF AND G0 & AWAY TRAVEL TOURISM SDN BHD (No.Syarikat: 201801030916 (1292942-T)) ...DEFENDANT GROUNDS OF JUDGEMENT INTRODUCTION [1] The Plaintiff in this case seeks leave of the court under Order 52 rule 3 Rules of Court 2012 requesting an order for committal of the proposed contemnor Mr Azuwan bin Mohd Nordin, the Director of S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal the Defendant company concerning a breach of an interlocutory order given by this court. The Plaintiff obtained an interlocutory ad ‑interim injunction on 20.6.2025 restraining the Defendant from acting upon a statutory notice and from filing a winding‑up petition pending disposal of the related applications. BRIEF BACKGROUND [2] This claim was initially filed by the Defendant against the Plaintiff in the Sessions Court, for the sum of RM990,811.69 being the payments for invoices issued for flight tickets booked, delivered and utilised for the periods ranging from 15.12.2019 untill 24.12.2019. [3] The suit proceeded to full trial on the 7.9.2023 and the learned Session Court Judge having heard the testimonies of witnesses for the Plaintiff and the Defendant, held that the Defendant had proven their claims against the Plaintiff on the balance of probabilities and handed a monetary judgment in favour of the Defendants with costs of RM30,000.00 S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] For easy reference, the table below sets out a brief chronology of events and the time line for proceedings filed by the parties: - RELEVANT DATES APPLICATIONS FILED / STATUS 1. Defendant commenced a civil suit in 26.2.2021 the Sessions Court to recover the sum of RM990,811.69 from the Plaintiff. 2. Session Court Judge after a full trial 7.9.2023 ordered a monetary judgment in favour of the Defendants with cost RM 30,000.00 3. 15.9.2023 An appeal was filed at the KL High Court Civil Appeal No: WA- 12BNCVC-122-09/2023. 4. 10.6.2024 Appeal dismissed, affirming the decision of the Sessions Court judge and RM10,000.00 cost was awarded by the High Court. 5. 9.7.2024 Notice of Appeal was filed to the Court of Appeal and the Hearing fixed on 7.10.2025. 6. 28 .04. 2025 A Statutory Notice under s.466(1)(a) of Companies Act 2016, was issued by Defendants. S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal 7. 23.05.2025 Plaintiffs issued a Notice of Motion for leave to adduce fresh evidence in the Court of Appeal. It was dismissed with cost RM7,000.00 8. 04.06.2025 OS was filed requesting a Fortuna Injunction by the Plaintiff in this Suit 301. 9. 06.06. 2025 Defendants filed a creditors’ winding- up petition: WA-28NCC-599-06/2025 (Suit 599) 10. 20.06. 2025 High Court by J Atan Mustaffa Yussof Ahmad granted an Ad‑Interim order restraining the Defendant from acting on the statutory notice and from filing a petition against Plaintiff. 11. 07.07.2025 Petition 599 was withdrawn by the Defendants at the E‑Review with liberty to re‑file. 12. 14.07.2025 Winding up Petition in WA-28NCC- 737-07/2025 (Suit 737) was re-filed by the Defendants based on correspondence exchanges by the parties. 13. 05.08.2025 Suit 737 was withdrawn with immediate effect by the Defendants S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal due to a genuine mistake on the advertising criteria imposed by this court. Analysis and findings of the court [5] It is settled law that committal proceedings are criminal in nature since it involves the liberty of the alleged contemnor and the fundamental principle is that no man’s liberty is to be taken away unless every requirement of the law has been strictly complied with. [6] Contempt proceedings serve as a critical mechanism to uphold the authority of the courts and ensure compliance with lawful orders. The process of initiating such proceedings, particularly the requirement of obtaining leave, involves careful procedural safeguards to balance the enforcement of court orders with the rights of parties. [7] This court refers to the case of Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2015] MLJU 1144 whereby His Lordship Mohd Nazlan Bin Mohd Ghazali (as he then was) opined as follows: “[18] Accordingly, the law has additionally provided for procedural safeguards to be adhered to, not only before one can be ordered to be committed, but also even prior S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal to the commencement of the committal proceedings. A fundamental safeguard is the requirement for leave, as embodied in Order 52 r 3 of the Rules of Court 2012(“RC 2012”). Given that the central issue in the instant case concerns the granting of leave to commence committal proceedings, the entirety ofOrder 52 r 3 is set out hereunder: - Application to Court (Order 52 r 3) (1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule. (2) An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on. [8] This case, further goes on to state that the test in granting leave provides procedural safeguards for granting committal proceedings which require strict compliance. These safeguards are in place even prior to the commencement of the committal proceedings. TEST FOR GRANTING LEAVE (A) REQUIREMENT FOR PRIMA FACIE CASE [20] S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal My review of the relevant case law authorities suggests that it should by now be considered settled law that leave to file committal proceedings will be granted if a prima facie case of contempt can be established. In the case of Wee Choo Keong v MBf Holdings Bhd & Anor and Another Appeal [1993] 2 MLJ 217, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, stated as follows: - “In the appeals before us, leave to issue committal proceedings has been granted. This means that the learned High Court judge has accepted that there was a prima facie case for contempt against the appellants. It may well be that on the hearing of the motion proper; the appellants will be acquitted of any charge of contempt.... [emphasis added] [21] In Dato’ Oon Ah Baa & Ors v Eagle & Pagoda Brand Teck Aun Medical Factory & Ors [2003] 7 CLJ 81 the High Court made the following observation:- In other words, the test required to be met before leave is granted is that the applicant must satisfy that there is a prima facie case of contempt (see Ngu Yen v Canada (Minister of Citizenship And Immigration) [1996] FCJ No 1478 (TD) (QL). [emphasis added] [22] The following passage in a decision of the High Court in Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 is no less instructive:- At the time when the court S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal had granted leave on 11 June 2007, it is pertinent to observe that there was only a prima facie case of contempt which was based on an ex parte application. In other words, it is merely a vetting process on an ex parte basis to consider if there was a prima facie [case] of contempt and the court did not go into the merits... [emphasis added] [9] In a more recent case of Elite Agriculture Sdn Bhd v Hajemi Bin Din dan satu Lagi [2022] 8 MLJ 778, the court emphasized that evidence must establish a sufficient basis for contempt before granting leave for committal proceedings, and that procedural safeguards are essential in contempt cases. The assessment of a prima facie case in this context involves examining whether credible evidence indicates that the respondents’ conduct, if unrebutted, would warrant a conviction for contempt; this does not equate to a criminal standard of proof but still requires sufficient initial evidence Prima facie case for contempt In the appeals before us, leave to issue committal proceedings has been granted. This means that the learned High Court judge has accepted that there was a prima facie case for contempt against the appellants. It may well be that on the hearing of the Motion proper; the S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal appellants will be acquitted of any charge of contempt. However, for purposes of the present appeals, the allegations of contempt are supported by the order for leave. In Instituto Bancario San Paolo Di Torina SPA, there appears to have only been an allegation of contempt without any more. Here, there is a finding of prima facie contempt which cannot be ignored. In this context, we are more inclined to accept the view expressed by Young J in Young v Jackman [1986] 7 NSWLR 97 where he said: Accordingly, it would seem from 1820 onwards that the rule that a person will not be heard when he is guilty of contempt extended as well to the case where a party was considered to be in contempt, that is, where his contempt had prima facie been demonstrated to the court or alternatively when he had confessed the facts which were the subject of a charge of contempt. (Emphasis added.) We have carefully read the appeal records and especially references made therein to the conduct of the appellants in general and the conduct of the third appellant in particular. This conduct relates to the manner in which the allegations of contempt arose. From the records, we are satisfied that the learned judge had ample S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal material before him to exercise his discretion in the manner in which he did. [10] Committal proceedings are generally ex-parte in nature, relying solely on the petitioner’s documentation and affidavits, necessitating careful scrutiny of the evidence to determine whether it reasonably supports a prima facie case. The legal framework recognises that a contempt of court is a quasi-criminal offence, and procedural rules must be strictly followed to safeguard the liberty of the accused. A fundamental safeguard has already embodied in Order 52 rule 3 of the Rules of Court 2012 (ROC). [11] Even though Order 52 does not elaborate on the test to be applied when granting leave but Order 52 rule 3(2) specifies two documents to support a leave application. The first is a statement describing amongst others, the alleged contemnor, and the grounds on which he is alleged to be in contempt. The second is an affidavit verifying the facts relied on. [12] The Plaintiff in this case argues, that the Defendant had shown a total disrespect to the Court Order, to which the Defendant’s Counsel himself had considered and had apologized. The alleged inadvertent and/or mistaken belief and/or mens rea need not be proven in order for the Court to grant leave for committal against the Proposed Contemnor. S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal [13] The Plaintiff relied on the Federal Court case of T.O. Thomas v Asia Fishing Industry Pte. Ltd. [1977] 1 MLJ 151 whereby His Lordship Lee Hun Hoe CJ (Borneo) (as he then was) opined that: “…“The court order” has never been discharged. There is no question of the undertaking suspending “the court order”. An order even irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed, until by proper application it is discharged. This view is supported by authority. In dealing with the contention that the original order had been erroneously grantedin Fennings v Humphrey (1841) 4 Beav 1; 49 ER 237 Lord Langdale M.R. said: — “It is clear, that a party who is served with an order may be guilty of contempt for disobedience, in a case in which the order ought not to have been made. He is not to determine for himself, but ought to come to the court for relief, if advised that the order is invalid...” [14] Based on the above case laws, this court would like to adapt a more well balanced rational before considering granting leave for this committal application, namely: - I. The protection of the parties from unwarranted allegations; II. For the courts to filter out cases lacking in sufficient evidence on merits; and S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal III. To ensure contempt proceedings are initiated only when there is credible basis to maintain procedural integrity. [15] Even on the limited and preliminary material before this Court, the leave application filed by the Plaintiff has not established a prima facie case that the proposed contemnor deliberately and willfully disobeyed an order of the Court beyond reasonable doubt. The documentary record, only discloses a procedural history of withdrawal and a replacement of the winding‑ up petition, communications between both counsels and the fact that the Defendant took steps to discontinue the said petitions filed unintentionally. [16] According to the prior communication between the parties, the Defendant had obtained the Plaintiff's consent before withdrawing the first petition and had written to inform them of intentions to file a new petition if the plaintiff was not agreeable. The defendant emphasized that they did not advertise Suit 737 or not serve it on the insolvency department and it was merely filed to replace the previous one. [17] The counsel for the Defendants further explained that, to his understanding, the order only prevented advertising, not filing of petitions and further went on to state that this was an oversight and not an attempt to disregard the courts order to intentionally cause contempt. Where there are immediate remedial steps taken S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal and explanations consistent with inadvertence or bona fide mistake, this Court is reluctant to deprive an individual of liberty absent proof beyond reasonable doubt of deliberate defiance. [18] After considering all material facts and issues before this Court. I find that the Plaintiff has not established sufficient basis for a contempt before leave can be granted. Since the Defendant’s solicitors took early steps to discontinue the winding‑ up petition once the procedural irregularity was identified and communicated, the intention was to uphold the court’s authority. [19] Accordingly, the application for leave to commence committal proceedings against the Defendant is dismissed with costs of RM3,000. 09 JANUARY 2026 SHOBA DORAI RAJAH Judicial Commissioner Kuala Lumpur High Court (Commercial Division) S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsel: For the Plaintiff: Ganesh Perumal (Shasha Aquliah and Siti Aisyah) with him (Messrs Ganesh & Co. (Kuala Lumpur)) For the Defendants: K C Wan (K C Wan & Co. (Kuala Lumpur)) S/N pCjANgYbzkWoPolw4CRc2g **Note : Serial number will be used to verify the originality of this document via eFILING portal