rayuan sivil no. j-02-21-2008 antara harta kumpulan sdn. bhd

DALAM MAHKAMAH RAYUAN MALAYSIA
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. J-02-21-2008
ANTARA
HARTA KUMPULAN SDN. BHD
(NO. SYARIKAT: 32967-X) … PERAYU
DAN
IJM CORPORATION BERHAD
(NO. SYARIKAT: 104131-A) … RESPONDEN
(Dalam perkara Mahkamah Tinggi Malaya di Johor Bahru
Guaman Sivil No. MT1-22-724 Tahun 2005
Antara
IJM Corporation Berhad
(No. Syarikat: 104131-A) … Plaintif
Dan
Harta Kumpulan Sdn Bhd
(No. Syarikat: 32967-X) … Defendan
CORAM: SURIYADI BIN HALIM OMAR, JCA
NIHRUMALA SEGARA A/L MK PILLAY, JCA
KANG HWEE GEE, JCA

J-02-21-08
Kang Hwee Gee, JCA:
2
JUDGMENT OF THE COURT
The contempt proceeding arose from a judgment obtained by the
plaintiff against the defendant in Civil Suit No: MT1-22-724-2005
at the Johor Bahru High Court.
The judgment obtained against the defendant was twofold.
The first was an injunction restraining the defendant from
presenting a winding up petition against the plaintiff under s 218
of the Companies Act 1965 on a disputed debt.
The second was in respect of a separate injunction related to the
first restraining the defendant from committing nuisance by
continuing to write to the plaintiff concerning a dispute arising from
a previous joint venture agreement which was the subject matter
of a civil action which the defendant had lost both at the High
Court and the Court of Appeal.
It is in respect of the breach of the second that this contempt
proceeding was brought against the defendant at the High Court.
The Judgment Order on this injunction read:
“AND IT IS ORDERED that the Defendant be restrained by a permanent
injunction either by itself or by its employees or agents or any other person

J-02-21-08
from contacting the Plaintiff either through letters and/or whatever
announcement and/or any publication regarding any matter related to the
Joint Development Agreement dated 30.3.1992 that may constitute a
nuisance on the Plaintiff.”
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The plaintiff’s ground for citing the defendant for contempt was the
defendant’s defiance of the restraining order in continuing to write
incessantly to the plaintiff by 8 letters addressed to the plaintiff.
The letters were written by a director of the defendant Yai Yen
Hon @ Chua Yen Hon ostensibly in his own capacity and
addressed to the managing director of the plaintiff Datuk Tan
Boon Seng @ Krishnan. The letters and their contents were set
out in extenso in the judgment of the learned judge and it is not in
dispute that they relate to the Joint Development Agreement
mentioned in the Judgment Order.
These letters were by his own admission written by a director of
the defendant Yai Yen Hon @ Chua Yen Hon without the
authority and knowledge of the other two directors of the
defendant, Wong Quai Yin (his wife) and Yai Heng Yew @ Chua
Heng Yew (who at the relevant time was no longer a director of
the defendant).
The application was resisted by the defendant on the
unsustainable ground that they were written by the writer not for
and on behalf of the defendant company but in his personal
capacity or in his capacity as a qualified accountant or as a
shareholder of the respondent company, and that in any case

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4
they were meant to communicate with the respondent’s officers or
employees and not the respondent company.
Without having to delve into that aspect of company law relating
to corporate personality raised in this appeal we agree with the
finding of the learned Judge for the reasons alluded to in his
judgment, that although the letters were in form written by Yai Yen
Hon @ Chua Yen Hon and addressed to Datuk Tan Boon Seng
@ Krishnan in their respective personal capacity, they were in
substance written by Yai Yen Hon @ Chua Yen Hon as a director
of the defendant company and addressed to Datuk Tan Boon
Seng @ Krishnan as the managing director of the plaintiff
company.
It is clear to us that the underlying objective of the injunction was
to stop the defendant company from contacting the plaintiff on any
matter relating to the Joint Development Agreement which may
constitute a nuisance on the plaintiff company. By those letters
the defendant had succeeded in contacting the plaintiff on matters
relating to the Joint Development Agreement and was therefore in
breach of the injunction. The learned Judge was therefore right in
finding Yai Yen Hon @ Chua Yen Hon guilty of contempt.
We are satisfied that Yai Yen Hon @ Chua Yen Hon had
singularly written those letters and that the other director Wong
Quai Yin (his wife) played no part. She should not therefore be
liable for the defendant company’s contempt.

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In view of the trivial nature of the contempt and the promise of Yai
Yen Hon @ Chua Yen Hon not to contact the plaintiff again, we
set aside the custodial sentence of imprisonment imposed by the
High Court. Instead, we order that Yai Yen Hon @ Chua Yen Hon
gives an undertaking not to write any more letters to the plaintiff
that may constitute a nuisance to the plaintiff. Should there be a
breach of the undertaking in the future, he shall be brought before
this Court to be dealt with accordingly.
Tarikh: 14.10.2009
DATO’ KANG HWEE GEE
Hakim Mahkamah Rayuan
Malaysia.
Bagi Pihak Perayu: Kedua-dua Pengarah hadir sendiri
Bagi Pihak Responden: Dr. Clarence Edwin bersama
Encik R. Paramanandan
Tetuan Clarence Edwin Law Offices