Ravindra A/L Ramachandran, 25-01-2010

• Judge: SURAYA OTHMAN
• Judgment Date: 25 January 2010
• Court: High Court (Malaysia)
• Record Number: S8-24-124-2009

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(FAMILY DIVISION)

ORIGINATING SUMMONS NO: S8-24-124-2009

BETWEEN

RAVINDRA A/L RAMACHANDRAN … PLAINTIFF/HUSBAND

(NO I/C: 640223-05-5021)

AND

THANG MUN SEONG … DEFENDANT/WIFE

(NO I/C: 650513-10-6578)

GROUNDS OF JUDGEMENT

INTRODUCTION

This is an ex parte application by the Defendant/wife by way of summons in chamber in enclosure (10) praying for the orders read as follows:

1. that the ex parte order dated 18 September 2009 granted to the Plaintiff/Husband be set aside as there is no urgency shown as required under Order 29 Rule 2 of the Rules of High Court 1980;

2. that Defendant/ Wife as mother to the children of the marriage is allowed to take the children out of the matrimonial home;

3. that the sum of RM255,005.00 is the Defendant’s money and/or is part of the joint asset of both parties the distribution of which will be decided by the court at the hearing of the divorce petition which currently has been filed with the Registration Department(Marriage Reconciliation Tribunal);

4. that cost of the application to be paid by the Plaintiff to the Defendant;

5. other orders this court deems fit.

FACTS AND BACKGROUND

Before going any further, it is important to set out the factual background and the sequence of events relevant to this application. From the pleadings adduced by both parties in this court, the facts of this case are as follows:

The Plaintif Ravindra a/l Ramachandran in this case was married to the Defendant Thang Mun Seong on 16 August 1991 at Tsim Sha Tsui Marriage Registry, Hong Kong and registered the marriage in accordance with the Law Reform (Marriage and Divorce) 1976 (Act 164) (“LRA 1976”) .

Out of this marriage two children were born (“said children”) Both are boys and they are Viknesh a/l Ravindra (14 years old) and Sree Ram a/l Ravundra (12 years old).

The husband and wife encountered problems in their marriage. The wife is currently waiting for the issuance of a certificate from the Marriage Tribunal.

On 25 August 2009, the wife filed an Originating Summons No S8-24-119-09 seeking custody of the children and the removal of the husband from the matrimonial home.

The Plaintiff/Husband then filed an ex parte Originating Summons (“said ex-parte OS”) (enclosure 1) dated 7 September 2009 together with a “Certificate of Urgency”. The said ex-parte OS was heard by this count in Chambers on 18 September 2009 and after hearing Mr V Kumaresan, counsel for the Plaintiff, this court granted an ex parte Order dated 18 September 2009 (“said ex parte order”) on the following terms:-

1. The Defendant/Wife is restrained from taking out both the children named VIGNEESH A/L RAVINDRA (No. K/P: 951106106465) (14 years old) and SREE RAM A/L RAVINDRA (No. K/P: 970212105363) (12 years old), from their residence at No. 27, Jalan Bukit Raja, Off Jalan Taman Bukit Seputeh, 58000 Kuala Lumpur, except for the purpose of schooling and related activities;

2. The Defendant/Wife is prohibited from bringing the children home at No. 27, Jalan Bukit Raja, Off Jalan Taman Bukit Seputeh, 58000 Kuala Lumpur no later than 9.00 p.m. each day;

3. The Defendant/Wife is prohibited from removing any of the childrens’ personal belongings, including their reading materials and materials relating to their school from their residence at No. 27, Jalan Bukit Raja, Off Jalan Taman Bukit Seputeh, 58000 Kuala Lumpur.

4. The Defendant/Wife is prohibited from spending the sum of RM255,005.00, being part of the proceeds of sale of the property known as No. 39-3, Bangsar Heights Condominium, Jalan Kaloi, Bangsar, 59000 Kuala Lumpur (herein after referred to as “said property”), which was completed through the “Sale and Purchase Agreement” dated 25-3-2009, read together with the “Supplemental Agreement “dated 23-4-2009, and to immediately pay the said sum of RM255,005.00 into Court.

5. The Defendant is prohibited from selling or otherwise parting with the control in any manner, the vehicle Mitsubishi Pajero IO, bearing registration number WJC 2663.

The said ex parte Order was extracted and served immediately on the Defendant on the same day i.e. 18 September 2009. Subsequently, the cause papers were served on the Defendant’s Solicitors.

Upon receiving the cause papers, the Defendant/Wife immediately filed the ex parte Summons in Chambers (enclosure 10) on 18 September 2009 praying inter alia that the said ex parte order granted by this court to the husband on 18 September 2009 be set aside. On the date of the hearing of the ex parte Summons in Chambers on 7 October 2009, this court ordered it to be heard inter parte.

JUDGEMENT OF THE COURT

In seeking to set aside the said ex-parte order dated 18 September 2009, the Defendant/Wife’s counsel, Ms Sumita Gunarajah argued that:-

1. an ex-parte Order is given only in the rarest of circumstances and there is no circumstances here justifying the need for an urgent ex-parte application ;

2. there is non-disclosure of fact by the Plaintiff/Husband;

3. the Plaintiff/Husband has deliberately deceived, suppressed and/or concealed material facts from this honorable court ; and

4. the said ex-parte Order has caused serious injustice to the Defendant/Wife.

Ms Sumita Gunarajah submitted the case of Mohamad Zainuddin bin Puteh v Yap Chee Seng [1978] 1 MLJ 40, which stated:-

“It is an established law that the court in an application of this nature must be satisfied that the person who asked for the interlocutory injunction did not mean to deceive the court and that the court is bound to maintain the principle that those who come asking for ex-parte injunction must proceed with the highest good faith, and keep back no material facts.”

She further submitted the case of Castle Inn Sdn Bhd v Bumiputra Commerce Bank Bhd [2007] 8 CLJ 545 where Azahar Mohamed J held:

“Where there is failure to fully and frankly disclose all material facts or where there is any misleading misrepresentation in an ex-parte application it will result in the court setting it aside.”

The case of Castle Fitness Consultancy Pte Ltd v Manz [1990] 1 MLJ 141, and the case of Png Siaw Luan v Wong Tui San & Ors [1990] SLR 643 were also referred to. In the case of Castle Fitness Consultancy Pte Ltd it was held that:

“The court should deal with great strictness and severity with person who apply for ex-parte injunction. A party applying is bound to put the court in possession of all the facts in order to enable it to judge whether the defendant ought to be put to what may be described as a very serious sanction, ie a temporary injunction.”

In the case of Png Siaw Luan, Karthigesu JC (as he then was) stated:

“There was also no justification for the plaintiff applying for an ex parte application without notifying the attorneys or the solicitors for the fourth defendant. The Plaintiff and her solicitors were aware that the parties had solicitors and who they are.”

In replying to the Defendant/Wife’s submission, the Plaintiff/Husband’s counsel, Mr V Kumaresan contended that:-

1. the Plaintiff/Husband filed the said ex parte OS on an urgent basis supported by an affidavit in compliance with Order 29 Rule 2 (A) of the Rules of the High Court 1980. Therefore the said ex parte Order granted to the husband should be considered proper by this honorable court; and

2. the failure to give a prior notice of the ex parte OS was due to the fact that if notice had been given to the Defendant/Wife or her lawyer, it would jeopardized the financial interest of the Plaintiff/Husband pertaining the proceeds of sale from the said property.

Learned counsel, Mr V Kumaresan referred to the case of Mohamad Zainuddin bin Puteh v Yap Chee Seng (supra) and the case of New Civilbuild Pte Ltd v Guobena Sdn Bhd [1999] 1 SLR and submitted that since the court had granted the said ex parte order to the husband it is invidious for this court to discharge the said order merely on the basis that it ought to have been made inter parte. He argued that there were serious questions to be tried and the balance of convenience lay in favour of maintaining and preserving the status quo of the situation i.e. that the said ex parte order granted to the husband be maintained until the hearing and disposal of the OS. In this light, the summons in chambers to set aside the said ex parte order by the wife should be dismissed by this court.

Finding of the court

The Plaintiff/Husband alleged that the Defendant/Wife suffers from not one but a “cocktail” of medical ailments over the years ranging from vestibular migraine, thyrotoxicosis, and thalassemia. According to him the wife had attempted to overdose herself with sleeping tablets and had undergone treatment in Hong Kong from a psychologist. Due to all these health problems, the husband maintained that the two children should not be left with the wife as she is not mentally stable. The husband exhibited a report from Datuk Dr Nik Zainal from Tawakal Specialist Centre Kuala Lumpur to support his contention.

The Defendant/Wife denied that she is mentally unstable and maintained that thyrotoxicosis and thalassemia are not mental illnesses which have ever affected her mental state of mind. She is a teacher teaching Geography and World History to Forms 1 and 2 and Primary 1 to 6 at Sekolah Sri Dasmesh and she would not...