SCOMI GROUP BHD (Company No.: 571212-A) 1. GELOMBANG GLOBAL SDN BHD (Company No.: 1096201-U) 2. MALAYSIAN TRUSTEE BERHAD (Company No.: 21666-V)

SCOMI GROUP BHD (Company No.: 571212-A) 1. GELOMBANG GLOBAL SDN BHD (Company No.: 1096201-U) 2. MALAYSIAN TRUSTEE BERHAD (Company No.: 21666-V)

The ex parte/inter partes applications were dismissed because the plaintiff failed to show a bona fide serious issue: clause 7 of the loan agreements constituted an express admission/estoppel that the lenders were not moneylenders, there was no evidence defendants carried on moneylending business, and the advances were commercial shareholder support; additionally the plaintiff had acted without bona fide and with unclean hands (publicly acknowledged the debts to Bursa while secretly seeking injunctions), damages were an adequate remedy calculable for traded shares, and the balance of convenience favoured defendants; mandatory injunctive relief was not justified.

Citation
WA-22NCC-74-02/2020 (Mahkamah Tinggi)
Parties
Plaintiff: SCOMI GROUP BHD; 1st Defendant: GELOMBANG GLOBAL SDN BHD; 1st Defendant: TAN SRI NIK AWANG @ WAN AZMI BIN WAN HAMZAH; 2nd Defendant: MALAYSIAN TRUSTEE BERHAD
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 February 2020
Case Number
WA-22NCC-74-02/2020 (Mahkamah Tinggi)
Procedural Posture
Commercial Division Originating Summons (commercial Suits) / Interlocutory Hearing and Judgment on Applications for Injunctive Relief (ex Parte/inter Partes Applications)
Outcome
Enclosures 3 in both Suit No. WA-22NCC-74-02/2020 and WA-22NCC-75-02/2020 dismissed with costs
Legal Topics
Interlocutory Injunctions, Moneylender Licensing, Illegality and in Pari Delicto, Set Off and Security (pledge), Trustee/stakeholder Duties, Disclosure Obligations to Bursa, Mandatory Injunction Standard, Balance of Convenience/damages
Source Language
Malay/English
Company Law Contract Law Equity and Trusts Banking and Finance Securities Regulation Injunctions Interlocutory Injunctions Moneylender Licensing +6 more

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Parties

SCOMI GROUP BHD

Plaintiff

GELOMBANG GLOBAL SDN BHD

1st Defendant

TAN SRI NIK AWANG @ WAN AZMI BIN WAN HAMZAH

1st Defendant

MALAYSIAN TRUSTEE BERHAD

2nd Defendant

Procedural Posture

Commercial Division Originating Summons (commercial Suits) / Interlocutory Hearing and Judgment on Applications for Injunctive Relief (ex Parte/inter Partes Applications)

Legal Issues

  1. 1 Whether loan agreements are illegal/unenforceable as unlicensed moneylending under the Moneylenders Act 1951 and/or UMLA
  2. 2 Whether the irrevocable undertakings remained in effect or had ceased following default/expiry
  3. 3 Whether plaintiff came with clean hands and whether damages are an adequate remedy and balance of convenience favours injunction

Ratio Decidendi

The ex parte/inter partes applications were dismissed because the plaintiff failed to show a bona fide serious issue: clause 7 of the loan agreements constituted an express admission/estoppel that the lenders were not moneylenders, there was no evidence defendants carried on moneylending business, and the advances were commercial shareholder support; additionally the plaintiff had acted without bona fide and with unclean hands (publicly acknowledged the debts to Bursa while secretly seeking injunctions), damages were an adequate remedy calculable for traded shares, and the balance of convenience favoured defendants; mandatory injunctive relief was not justified.

Court Disposition

Enclosures 3 in both Suit No. WA-22NCC-74-02/2020 and WA-22NCC-75-02/2020 dismissed with costs

Orders

  • Enclosures 3 in both Suit No. WA-22NCC-74-02/2020 and WA-22NCC-75-02/2020 dismissed
  • Costs awarded to defendants fixed at RM 50,000.00