[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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JUDGMENT - EX TEMPORE
LEEMING JA: Before the Court is a notice of motion filed yesterday by Berhero Pty Ltd in proceedings commenced in the Court of Appeal also yesterday seeking leave to appeal from the interlocutory orders made in the Common Law Division of this Court by Sweeney J on 26 April 2024: Berhero Pty Ltd v Senibina Sentral SDN BHD [2024] NSWSC 459. Importantly, and practically, both sides have cooperated in a timetable that will permit a final hearing of the application for leave to appeal to occur extremely expeditiously, on 29 May 2024, which is a little over a fortnight from today. It is possible that the appeal will be determined on that day. It is also possible the judgment will be reserved, but it is ordinarily the case in proceedings in the New South Wales Court of Appeal that are heard with the utmost expedition, as this will be, for any period of time within which judgment is reserved to be minimal.
I say that because the motion today concerns the interim position between the parties who are presently bound by orders which concern pending Malaysian proceedings, which orders are challenged in the appeal. The orders sought by Berhero are as follows:
Order 2(i) made by the Court below on 26 April 2024 is stayed on the condition that the applicant be permitted only to take the following steps in Malaysian proceedings WA 24NCvC 5741 12/2023:
(a) Apprising the High Court of Malaya of the status of the New South Wales Supreme Court proceedings 2022/229200 and the status of this appeal proceeding;
(b) Making an application for an adjournment (or temporary stay) in the High Court of Malaya pending determination of this appeal proceeding;
(c) Making an application that the judge hearing the application in the High Court of Malaya does not determine the registration of charge proceedings until this appeal proceeding has been determined.
In order to determine whether the interlocutory relief sought by Berhero is granted or refused, it is not the role of the Court presently constituted to express any view on the strength or weakness of the appeal. No submissions have been received from either side on that point, and I shall proceed on the basis, which is the ordinary basis that applications of this nature proceed upon, that the application for leave to appeal is reasonably arguable.
Instead, and once again conventionally with applications of this kind, attention has focussed upon whether the exercise of the jurisdiction invoked by Berhero is necessary to maintain the status quo in order to preserve the subject matter of proceedings or to avoid an appeal being rendered nugatory: see for example Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 at [15].
The order that is the subject of the interlocutory application, namely order 2(i) made on 26 April 2024, is as follows:
The plaintiff, by itself, its servants, its agents or howsoever otherwise, is restrained until further order, from taking any further step directly or indirectly in the following proceedings:
(i) proceedings WA-24NCvC-5741-12/2023 in the High Court of Malaysia as against the fourth and fifth defendants (the Low Teo registration of charges application) …
The position as I understand it is that two proceedings, known as "the Low Teo caveat extension of time proceedings" and "the Low Teo registration of charges proceedings", were commenced in the High Court of Malaya. They were given numbers which end 5740-12/2023 and 5741-12/2023. The former, the caveat extension of time application, was the subject of consent orders in the Supreme Court of New South Wales made on 26 February 2024. As I understand it, the outcome of those consent orders in this Court and orders made in the High Court of Malaya is that the caveats that have been lodged supported by the interests claimed in the underlying and undetermined proceedings in the Common Law Division of this Court, namely 2022/229200, have been extended until the final determination of those proceedings. As I understand it, listed for final hearing on Monday 13 May 2024 are the separate 5741-12/2023 registration of charges proceedings. Hence the urgency of this application, the intent of which was to clarify what could be done and to permit things that, as the orders presently stand, cannot be done in those proceedings next Monday. To that end, pursuant to emails exchanged between the Registrar and the solicitors for the parties yesterday, the motion was set down before me at 11am this morning and I have heard it for around an hour and a half and am delivering judgment now.
There are two introductory matters. The first is that following receipt of the judgment of the Supreme Court, from which the present application for leave to appeal is brought, a firm of solicitors retained for some or all of the respondents produced a letter to an officer of the High Court of Malaya which expressed that firm's belief as to their effect. Attention has been focussed upon the last paragraph of that letter (and I read from the translation that has been supplied to me) which is as follows:
In relation to the above Anti-Suit Injunction Order, we believe that the Hearing should not be conducted and the Plaintiff is required to withdraw the Plaintiff's Originating Summons in Enclosure 1 filed herein since the Plaintiff is barred from proceeding with the Plaintiff's Application in Enclosure 1. If the plaintiff continues this action by proceeding with the hearing, the plaintiff is subject to a charge of contempt of court in the Supreme Court of Australia (emphasis in original).
There is no Supreme Court of Australia. The orders were made by the Supreme Court of New South Wales. Much more importantly, however, it is not my view, nor is it the view of the Australian legal practitioners retained by any of the parties, that the effect of the order is that the plaintiff is required to withdraw the originating summons. The order prohibits the plaintiff from doing things. The order does not require the plaintiff to do anything. I say this, as previously anticipated by me with the parties, in order to prevent the possibility of there being any confusion in the High Court of Malaya brought about by that letter.
The second introductory matter is that it is common ground before me that the effect of the order is to preclude a representative of the applicant from informing the High Court of Malaya of what occurred in the Supreme Court proceedings, what is to occur in the Supreme Court proceedings and the status of the new proceeding now pending in the Court of Appeal that was commenced yesterday. Whether or not that is so turns upon the proper construction of the order, and in particular the scope of the prohibition against "taking any further step directly or indirectly".
It is ordinarily appropriate for those affected by court orders to take a conservative view of the effect of any injunction, lest they inadvertently be in breach of it. Accordingly, I am not critical of the stance which has been taken by the parties in this matter, although I also consider that it is arguable that the order in its present form does not stand in the way of a representative of the plaintiff informing the High Court of Malaya of what has occurred in the 2022 Common Law Division proceedings and what has occurred yesterday and today in the Court of Appeal. But it is desirable, as is sought in paragraph 1(a) of the notice of motion, for there to be absolutely no doubt about this operation of the order. I did not understand there to be any real opposition in terms of either appropriateness or prejudice to my making clear that the High Court of Malaya could be informed of what is happening. I note that that would be consistent with the obligations of legal practitioners to assist the Court assuming, as I do, that they are materially identical in Malaysia as in New South Wales.
Accordingly, I shall make the following order.
Nothing in order 2(i) made on 26 April 2024 in proceeding 2022/229200 prevents Berhero Pty Ltd or any of its representatives from informing the High Court of Malaya of the status of New South Wales Supreme Court proceedings 2022/229200 or the status of the newly commenced appeal, including its listing for hearing on 29 May 2024.
I turn then to the substance of the balance of the motion by which the applicant seeks to go further and take steps which unquestionably are presently prohibited by the extant order, although they are relatively limited, namely, to adjourn the Malaysian proceedings which are listed for final hearing on Monday and to seek other limited interlocutory relief. On that issue, the considerations are, in my view, relatively finely balanced.
On the one hand, the applicant does not seek to have any final determination of any issue by the Malaysian Court, but merely, in effect, to have its registration of charges proceeding treated in the same way as the extension of caveat proceeding. On the other hand, it is difficult for the applicant to point to any real prejudice occasioned by not obtaining the orders that it seeks.
As Ms Harris, who appeared for the respondents pointed out, to the extent that there is any prejudice occasioned to the applicants in not having such benefits as flow from the registration of charge proceedings, it is theoretical in the sense that there is no evidence of prejudice, bearing in mind the fate of the extension of caveat proceedings. Against this, Mr Mack, who appeared for the applicant, said that attention should be focussed not so much to the underlying security interests being asserted and, to an extent, enforced in relation to real property in Malaysia, but to the subject matter of the Malaysian proceedings themselves, which might be affected absent the orders sought by him.
It is entirely unknown to me, and I do not for a moment suggest it is any part of my role to predict, let alone make any comments in relation to, what will happen on Monday in the High Court of Malaya. It follows that the determination of the remaining pressed paragraphs of the notice of motion must take place against the backdrop that it is possible that the High Court of Malaya will dismiss the proceedings, and it is also possible that it will adjourn the proceedings, which has happened in relation to the extension of caveat proceedings. I do, however, proceed on the basis that any order made in Malaysia will be informed by the status of the newly commenced proceedings in the Court of Appeal including its being set down for hearing on 29 May and the expectation that that application for leave to appeal will be heard and determined if not then but shortly thereafter.
Taking the worst case from the applicant's point of view, which is that the High Court of Malaya dismisses or makes some other order adverse to it in relation to the registration of charges proceedings, Ms Harris submitted that if the applicants succeeded in their appeal and set aside the injunctions ordered by Sweeney J, then they would be free to recommence proceedings in the High Court of Malaya. That cannot be gainsaid. Hence Mr Mack's response was to focus upon what he said was the subject matter of the appeal, namely the presently pending proceedings in the High Court of Malaya, and the facts that that delay might be accompanied not merely by costs thrown away and additional costs, but also by the possibility that other creditors might obtain a better position in terms of priority. He, as I understood it, candidly acknowledged, however, that there was no actual evidence of prejudice in terms of other creditors obtaining priority. That concession was properly made, especially having regard to the limited amount of time that is in play on this application.
I have considered whether delay should bear upon the outcome of this application. Mr Mack candidly acknowledges that there has been some delay. It is ordinarily appropriate, in cases where urgent interlocutory relief pending appeal is sought, for an application in the first instance to be made to the primary judge. That judge will be apprised with the evidence and will have delivered judgment and will be familiar with the matters in dispute in a way that a Judge of Appeal will not be. I appreciate that in the present case, instructions to appeal were only obtained this week, and when it became apparent that the primary judge would not accede to an application for a stay pending appeal, those instructions came more quickly, this Monday. I completely accept that thereafter, the applicant has moved with a very high and commendable degree of expedition so that from its point of view, its application for leave to appeal is, in substance, ready to be heard and determined. By that, I mean that a white folder has been prepared which contains most of the important material, including, particularly, its submissions in support of leave. On balance, although it should not be regarded as in the ordinary course for a Judge of Appeal to make himself or herself available on a Friday to hear and determine a matter that must be determined before 10am next Monday and therefore require determination other than in the usual referrals list on a Monday, I do not think that such delay as there has been should materially impact upon the discretion to be exercised in the interlocutory relief.
Ultimately, in an area where there is unavoidable uncertainty as to what the Malaysian Court will do, the question for me is whether it is necessary, in order for there to be a fair regime maintaining the status quo, for additional orders to be put in place permitting the applicant to make an application for adjournment - which, I hasten to add, may or may not be acceded to if made. As I said, I regard that question as one which is finely balanced. I think the reason that it is finely balanced, is a combination of a number of matters. One is that the period of time that is involved is probably a small number of weeks. That bears upon what the Malaysian Court is likely to do, but it also, more importantly, bears upon the extent to which not granting relief will result in prejudice to the applicant. The other matter that contributes to its being finely balanced is that the applicant has already obtained a measure of relief protecting its claimed interests in the Malaysian land through the caveat extension proceedings.
Ultimately, I am unpersuaded that it is necessary, in order to protect the legitimate interests of the applicant, to make the further orders or orders to the effect of them as sought in prayers 1(b) and 1(c).
I have already granted liberty to apply to me on short notice primarily with a view to ensuring that the highly expedited application for leave to appeal remains on track. That liberty to apply is also available to both sides in the event that there is some material change in circumstances in the interim that has not been anticipated in the matters raised before me today.
[Discussion concerning usual undertaking as to damages]
For those reasons, as presently advised, I see no reason to make any of the orders sought in para 1 of the notice of motion, noting that the substance of order 1(a) is captured in the order that I have already indicated I would make.
HIS HONOUR: I think it follows from that, Ms Harris, that the question I was asking you was misconceived and doesn't arise. I think I've made orders, in effect, in accordance with paragraph 3, and I think the orders that I should make, therefore, formally are otherwise dismiss paragraphs 1 and 2 of the notice of motion filed yesterday.
As to costs, I see the order that is sought. I would have thought you needed to come to Court urgently anyway to get the expedition that you want. Both sides' costs should be the costs in the cause, shouldn't they, rather than merely your own?
MACK: Yes.
HIS HONOUR: The order is both sides' costs of the notice of motion will be their costs in the proceedings.
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Decision last updated: 10 May 2024