Top Light Medical Supplies Sdn. Bhd. v Syarikat Neptune Enterprise Sdn. Bhd., 13-12-2013

• Judge: CHEW SOO HO
• Judgment Date: 13 December 2013
• Court: High Court (Malaysia)
• Appellant: TOP LIGHT MEDICAL SUPPLIES SDN BHD
• Record Number: BKI- 28 – 6/2 - 2013
• Respondent: SYARIKAT NEPTUNE ENTERPRISE SDN BHD

SUIT NO: BKI- 28 – 6/2 - 2013

MALAYSIA

IN THE HIGH COURT OF SABAH AND SARAWAK

AT KOTA KINABALU

SUIT NO: BKI- 28 – 6/2 - 2013

IN THE MATTER OF SECTION 217 OF THE COMPANIES ACT 1965

AND

IN THE MATTER OF SYARIKAT NEPTUNE ENTERPRISE SDN BHD (COMPANY NO 53250-M)

TOP LIGHT MEDICAL SUPPLIES SDN BHD

(Company No. 618225 – M) … PETITIONER

DECISION

(Enclosure 43)

Introduction

Enclosure 43 is the Summons In Chambers filed by Syarikat Neptune Enterprise Sdn. Bhd. (“the Respondent”) pursuant to section 221(2) (c) of the Companies Act 1965, O. 92 r 4 of the Rules of Court 2012 and Rule 7 of the Companies (Winding-up) Rules 1972 for the orders of Court, inter alia that the deponent of the Petitioner’s Affidavit Verifying Petition dated 28.6.2013 (Enclosure 29), the Petitioner’s Affidavit in Reply (Enclosure 40), and the Petitioner’s Further Affidavit in Reply (Enclosure 42), be directed to be cross-examined on his affidavits and all documents relating to the proceedings, that the hearing of or the decision on the petition proper may be postponed and/or stayed until after the final disposal of this application.

The principal ground for this application is that the deponent of Petitioner’s various affidavits namely Md. Ahmer bin Baharom had given affidavit evidence that he was informed by one Mr. Long Tian Fong from Sabah Medical Centre (“SMC”) that the Respondent had received full payment from SMC in satisfaction of the Arbitrator’s Interim Award i.e. for interim certificates No. 24 to No. 33 plus interest amounting to RM13,241,561.80 which Respondent contended to be hearsay evidence as Mr. Long was not the project architect, had played no role in the sub-contract entered between the Respondent and the Petitioner and is not a qualified quantity surveyor but a civil engineer.

The Issue

Section 221 of the Companies Act 1965 provides the Court with the discretion whether to direct or otherwise any oral evidence to be taken on the petition or any matter relating thereto. Hence the question before the Court is whether such discretion to direct cross-examination to be had ought to be exercised by this Court on the ground as contended by the Respondent against the deposition of the Petitioner’s deponent, Md. Ahmer Bin Baharom on the alleged fact that he was told by Mr. Long Tian Fong which was the Assistant Project Director of SMC that the Respondent had received full payment from SMC in respect of the Arbitrator’s Interim Award relating to interim certificates No. 24 to No. 33 and interest thereof.

Findings of the Court

From the deposition of Mr. Ahmer Bin Baharom vide his Affidavit in Reply (Enclosure 40), he deposed that he was informed as follows:-

“I am informed by Mr Long Tian Fong who is the Assistant Project Director for SMC and do verily believe that the Respondent had received full payment from SMC on or before 19.12.2012 in satisfaction of the Arbitrator’s Interim Award, namely, for interim certificates No. 24 to No. 33 plus late payment interest up to the date of payment, totaling RM13,421,561.80. This was not disclosed in RL’s AIO.”

Md Ahmer explained further at paragraph 14 (Enclosure 40):

“Thus the Petitioner’s claim for Phase II Works was in fact already certified for payment under Interim Certificates No. 25 to No. 36 which explains why SMC wanted to ensure that the Petitioner receives the sum of RM4,434,350.00 from the Respondent (refer to para 49 and prayer (9) of Amended Statement of Defence and Counterclaim filed by SMC, Exhibit “RL-4” of RL’s AIO).”

(Note: “AIO” is Affidavit in Opposition)

Petitioner contended in submission on the issue of hearsay evidence as in p. 2 – 6 para 7 – 13.

Although what Md. Ahmer had deposed that he heard or was informed by Mr. Long of the alleged fact that SMC being the principal, had settled the full amount of the Arbitrator’s Interim Award to the Respondent, this alleged fact had been endorsed by the Respondent vide its letter to the Petitioner and others dated 19.12.2012 which was exhibited by the Respondent vide its Affidavit in Opposition exhibit “AM-1” where Respondent stated expressly, inter alia, as follows:

“ We are pleased to confirm having received the payment awarded under the Arbitrator’s Interim Award dated 14^th February 2011 after the lengthy process of almost two years of Court appeals.”

Hence the fact that the Respondent had admitted that it had received the payment awarded under the Arbitrator’s Interim Award, had literally and explicitly confirmed what was told to Md. Ahmer by Mr. Long. With this admitted fact which is what was deposed by Md. Ahmer although the total amount of RM13,421,561.80 was not stated in Respondent’s aforesaid letter, there seems no basis to...