DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA [GUAMAN SIVIL NO: S-22-868-2008] (NO 2) ANTARA PALM SPRING JMB (SIJIL NO: 0046) Suatu badan yang ditubuhkan di bawah Akta Bangunan dan Harta Bersama (Penyenggaraan dan Pengurusan) 2007 (Akta 663)... PLAINTIF DAN 1. MUAFAKAT KEKAL SDN BHD (No Syarikat: 335240-D) 2. PSD MANAGEMENT SERVICES SDN BHD (No Syarikat: 669764-K)... DEFENDAN-DEFENDAN DI DALAM MAHKAMAH TERBUKA DI HADAPAN Y.A. DATO HUE SIEW KHENG HAKIM DECISION (Enclosure 49) 1. The plaintiff has commenced committal proceedings against the director of the 1 st and 2 nd defendants, one Dato Haji Abdul Hanif Bin Abdullah for failure to comply with paragraph 4 of the consent judgment dated 28.6.2010. 1
2. Paragraph 4 required the 1 st and/or the 2 nd defendant to deliver to the plaintiff all the relevant items contained in the subparagraphs therein within 30 days from the date of the consent judgment ie, they had until 28.7.2010 to comply. The plaintiff contends that till today the 1 st and/or 2 nd defendant has failed to comply, in particular subparagraph 4.14 whereby it was agreed:- Baki Akaun Penyenggaraan ( Maintenance Account Balance ) dan Baki Kumpulan Wang Penjelas ( Sinking Fund Balance ) yang dinyatakan di dalam Perenggan-Perenggan 4.12 dan 4.13 di atas mestilah dipindahkah ( transferred ) oleh Defendan Pertama dan/atau Defendan Kedua kepada Plaintif. 3. The alleged contemnor has raised various issues including the following:- a) that he was bound by the ad interim injunction dated 18.5.2009; and b) that he did not breach or refuse to comply with the requirements of paragraph 4 of the consent judgment. 4. With respect, the argument that the alleged contemnor is still bound by the ad interim injunction dated 18.5.2009 is misleading and fallacious as by its very nature being an ad interim injunction the alleged contemnor is no longer bound by it as the consent judgment entered into in 2010 provides for various perpetual injunctions against the 1 st and/or 2 nd defendant. This argument is therefore without substance and merit, as it is the consent judgment dated 28.6.2010 that is the foundation of the plaintiff s application to commit the alleged contemnor. There is no concealment of the ad interim injunction by the plaintiff as contended by the alleged contemnor because it is a non-issue. 2
5. In respect of the issue whether the alleged contemnor breached and/or refused to comply with the requirements of paragraph 4 of the consent judgment, I find there is clear and uncontroverted evidence before me that paragraph 4 has not been complied with even till today, particularly subparagraph 4.14. This has been conceded by the alleged contemnor as in his defence he has forwarded sundry excuses why he could not comply. 6. The issues raised by the alleged contemnor with regard to the break in which he alleged has led to his non-compliance took place in 2008. The consent judgment was entered into in 2010, a good 2 years later and not prior to the break in. If there is any truth to his averments that because of the break in, the relevant documents were removed from his keeping, the question that arises, and which he has failed to address, is why he had, 2 years later, agreed to deliver those documents / items to the plaintiff. 7. As for the allegation raised in respect of the plaintiff s balance sheet dated 31.5.2008 (AH-1) and financial statements for the period ended 31 st December 2008 (AH-2) in the defendant s Affidavit Tambahan, I find that the independent auditors of the Chartered Accountants firm of AL Wong and Co. have placed a disclaimer in the report that due to dispute, certain records in respect of the amount due from proprietors were not made available. In addition, certain proprietors have made payments towards settlement of their accounts directly to the account of the previous Property Manager. As of to date, the Management is unable to fully reconcile these balances (see page 2 of Financial Statement). Consequently, the auditors have refrained from expressing any opinion on the financial statement (see page 3). 8. In paragraphs 6 and 7 of the defendant s Affidavit Tambahan, he has averred that he found it sungguh mustahil dan pelik how these reports can be prepared. The disclaimer by the independent auditors 3
is clear and unequivocal that these are not complete and accurate reports. 9. For good measure learned counsel for the alleged contemnor has informed this court that as of 3.2.2012 the defendants have filed a writ to set aside the consent judgment. Bearing in mind the consent judgment was entered into on 28.6.2010, it is remarkable that it has taken the defendants about 2 years to suddenly realize that the consent judgment cannot stand. 10. In all the affidavits filed herein by the alleged contemnor the issue of setting aside the consent judgment was never raised as the defendant s position was that there were impediments in complying with the consent judgment. 11. I find there is proof beyond reasonable doubt that there has been contempt committed by the alleged contemnor who has willfully disobeyed the consent judgment dated 28.6.2010, and find him guilty of contempt of court. 12. I hereby allow the application for an order of committal against the Dato Haji Abdul Hanif Bin Abdullah, the director of the 1 st and 2 nd defendants. Sentence After hearing the plea in mitigation and learned counsel for the plaintiff not pressing for a custodial sentence, I fine the contemnor the sum of RM 10,000.00 in default 1 months imprisonment. 4
(HUE SIEW KHENG) Judge High Court Malaya Kuala Lumpur Dated: 15 FEBRUARY 2012 Counsel For the plaintiff - Lim Fang Say; M/s Loh Poh Seng & Co For t he Abdul Hanif Abdullah as Director for first and second defendant - R Kengadhar an (R Prabhakaran with him); M/s R Kengadharan & Co 5