1. Mok Chuang Kiang (No K/P: 5910521-01-6079) 2. Loo Shin Ching (No. K/P: 660919-07-5475) 1. Ang Pi Kui (No K/P: 701019-01-5811) 2. Ang Pi Kui (No K/P: 701019-01-5811) [Dalam kapasitinya sebagai Pengerusi Persatuan Kebudayaan Qiong Min Khek

Page 1 of 12 DALAM MAHKAMAH TINGGI DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA SAMAN PEMULA No: JA-24NCvC-136-02/2020 ANTARA 1. MOK CHUANG KIANG (No. K/P: 5910521-01-6079) 2. LOO SHIN CHING (No. K/P: 660919-07-5475) …PLAINTIF-PLAINTIFF DAN 1. ANG PI KUI (No. K/P: 701019-01-5811) 2. ANG PI KUI (No. K/P: 701019-01-5811) [Dalam kapasitinya sebagai Pengerusi Persatuan Kebudayaan Qiong Min Khek Chow Yek Johor Bahru (No. Pendaftaran: PPM- 006-01-22012018] 3. LIMA BENUA KOPITIAM (No. Pendaftaran: JM0924943-M) …DEFENDAN-DEFENDAN MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 2 of 12 FREDRICK INDRAN X.A. NICHOLAS Judicial Commissioner High Court of Malaya at Johor Bahru Date: 29.8.2021 MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 3 of 12 GROUNDS OF JUDGMENT Introduction [1] These grounds are drawn up as a result of an Appeal dated 30.7.2021 filed by the Defendants’, against an Order of this Court dated 27.7.2021 which dismissed an application to set aside an order issued by the learned Senior Assistant Registrar of this Court, whom ordered leave to issue a Writ of Possession against the 3rd Defendant. For ease of reference, the Order of this Court dated 27.7.2021 is reduced herein, in its original language: ~Intentionally left blank~ MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 4 of 12 (*1) MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 5 of 12 MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 6 of 12 MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 7 of 12 MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 8 of 12 The Background [2] The Plaintiffs’ and the 1st Defendant were partners in a partnership known as ‘Wu Pang Kopitiam’; which was meant to operate at No. 49-G, Jalan Indah 10/1, Taman Bukit Indah, 79100 Iskandar Puteri, Johor (‘the said partnership business premise’). [3] On 18.1.2019, the 1st Defendant registered the 3rd Defendant named above (‘Lima Benua Kopitiam’); and occupied the said partnership business premise; whereat it carries on business there without the Plaintiffs’ consent; which situation continues to date. [4] On 22.3.2021, the High Court at Johor Baharu pronounced an order in favour of the Plaintiffs’ against the 3rd Defendant to et al deliver possession of the said partnership business premise together with the assets to the Plaintiffs’ (see paragraph (g) of that Order). [5] Subsequent to that Order, the Plaintiffs’ served several notices to the Defendants’ Solicitors (see below) to demand the delivery of the said partnership business premise together with the assets, from the 1st and 3rd Defendants’ to the Plaintiffs’; but to no avail. [6] On 7.5.2021, the Defendants’ served upon the Plaintiffs’ an application for the stay of the Order of 22.3.2021; together with a supporting affidavit which contained an averment to the effect that the 3rd Defendant was still operating its business at the said partnership business premise. MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 9 of 12 [7] On that very day (7.5.2021), the Plaintiffs’ filed an ex parte application for leave to issue a Writ of Possession to enforce paragraph (g) of the Order of 22.3.2021 as against the 3rd Defendant. [8] This leave application was heard before the Senior Assistant Registrar (‘SAR’) of this Court on 20.5.2021; whereat the Plaintiff’s Solicitors declared that the learned SAR was appraised of the fact that the Defendants’ had filed an Appeal against the Order of 22.3.3021 at the Court of Appeal; and an application for stay of the same, at the High Court at Johor Baharu, which was yet to be heard. [9] In the upshot, the learned SAR granted the leave sought against the 3rd Defendant on that date (20.5.2021); and hence the application to set aside the said Order for leave, which was dismissed by this Court on 27.7.2021 (see paragraph [1] above); which has led to this appeal. The Evaluation and Findings [10] In gist, it is the Defendants’ contention that the said application for leave before the learned SAR should not have been heard ex parte; and that in effect the Plaintiffs’ had not provided that Court Official at the hearing on 20.5.2021, with ‘full and frank disclosure’ with regard to their pending stay application of the Order of 22.3.2021. [11] In response, the Plaintiffs’ contend that the Defendants’ had ample notice of their intention to press their right of possession granted vide the Order of 22.3.2021 (see paragraph [13] below); thus fulfilling the need for ‘notice of proceedings’ to the 3rd Defendant ~ as occupier ‘in actual MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 10 of 12 possession’ of the said partnership business premise ~ required by Order 45, Rule 3 (3) of the Rules of Court 2012; thus making their ex parte application before the learned SAR right and proper. [12] A perusal of Order 46, Rule 1 read together with Rule 2, does not prohibit an ex parte application for leave to issue a writ of execution, which includes a writ of possession. [13] In this case, the Plaintiffs’ had made several demands for the possessions of the said partnership business premise which was plainly disregarded by the Defendants’ (see pages 42 to 50 of the PBOD for the notices of proceedings issued by the Plaintiffs to the Defendants’ Solicitors dated 26.3.2021; 6.4.2021 & 28.4.2021). As the records show that the Defendants’ were represented by Solicitors at the material time, it is the view of this Court that it can safely be deemed that they ought to have known that they faced the risk of ‘execution’ of the Order of 22.3.2021, one way or the other. The following cases were cited by learned Counsel for the Plaintiffs’ in support of the proposition above: i. LAI KEN TECK & Ors. v. PERBADANGAN MENTERI BESAR [2020] MLJU 459; ii. PENGURUSAN DANAHARTA NASIONAL BERHAD v. YONG WAN HOI & Anor. [2008] 3 AMR 59; iii. CHU AH FALT v. ABDULLAH B ABDUL MAJID [1998] 1 AMR 291; MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 11 of 12 iv. LIM KOK LIAM & SONS Sdn.Bhd. v. LAU CHOON WAN (LEONG YOK CHIN INTERVENER) [1996] 4 CLJ 256. [14] That an appeal was filed at the Court of Appeal and/or that an application for stay against that impugned Order was pending at the High Court at Johor Baharu, can in no way be taken as any sort of ‘protection’ from the due ‘execution’ of that Order; that of course, is trite. [15] It is the considered view of this Court that the learned SAR was well within his jurisdiction to have made the Order that he did on 20.5.2021; and it thus does not behove this Court to interfere in the same. [16] That there then, is the rationale behind this Court’s Order of 27.7.2021 that is being appealed against in this instance. [17] Under my hand, Dated this 29th day of August, 2021 ................................................................... (Fredrick Indran X.A. Nicholas) Judicial Commissioner High Court of Malaya at Johor Baharu MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906 Page 12 of 12 COUNSEL For Plaintiff: Dr. Benjamin Poh Chee Seng, (Ms. Fatin Farhana bt Rahman with him) - Messrs. Benjamin Poh Loh Office, Advocates & Solicitors, No. 04-01, Jln Rosemerah 2/13, Taman Johor Jaya, 81100 Johor Bahru. [WPK/PD/FF/2019/0033] For Defendant: Mr. C. Sivasankar, (Ms. Ang Wei Jun with him) – Messrs. G Ravi, Advocates & Solicitors, 193F, First Floor, Jalan Sutera, Taman Sentosa, 80150 Johor Bahru. [RVG/9317/2020] MTJB/JA-24NCvC-136-02/2020/mck/apk/fi/r78/1906