Berhero Pty Ltd v Senibina Sentral SDN BHD

Berhero Pty Ltd v Senibina Sentral SDN BHD - [2024] NSWSC 459 - NSWSC 2024 case summary — Zoe

[3]

Defendants' Evidence

In support of their motion the defendants referred to the following parts of the purported agreement(s) between the parties.
By clause 4 of the document entitled "Loan Term Sheet" the loaned amounts were to be secured by registered mortgages over two specified properties and personal guarantees by the directors of the three companies seeking the loans, two of which companies are applicants in this motion.
In the document entitled "Costs Agreement associated with the Loan Term Sheet", clause 5, entitled "Security for Fees due to Acuity Funding" (the plaintiff's business) refers to the defendants charging properties in favour of the plaintiff until all costs, including interest and any other expenses, are paid in full. The defendants dispute that that clause gives rise to an entitlement to the registration of charges over properties in Malaysia or that the agreement gave rise to an antecedent debt.
Clause 6.5 of the "Costs Agreement" document stated that: "This Loan Term Sheet and Costs Agreement is governed by the law of New South Wales in the Commonwealth of Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of New South Wales in the Commonwealth of Australia".
The defendants submit that the effect of this clause is that any debate in a court in Malaysia about whether or not there is an entitlement to a declaration of a charge must be determined on the application of the laws of New South Wales. The plaintiff submits that the effect of this clause is to permit the plaintiff to sue outside of New South Wales.
The Originating Summonses in the two Malaysian proceedings "For orders to register charges" seek orders: 1. A declaration that the plaintiff is an equitable chargee over all properties owned by the (specified) defendants, including but not limited to specified properties. 2. An order that the (specified) defendants take all the required steps to register charges over all their properties in favour of the plaintiffs before the Registrar of Titles from the Federal Territories Director of Lands and Mines Office.
The Originating Summonses each state that by virtue of the agreements entered into between the plaintiff and the defendants, the defendants have agreed to register charges over any or all of their properties in favour of the plaintiff.
The defendants point to the affidavit sworn by Ranjit Thambyrajah, the sole director of the plaintiff, in support of the Originating Summons in the second charge proceedings against the two corporate defendants (Senibina Murni and Senibina Sentral) and particularly paragraphs 22 and 23. Paragraph 22 states that on or about 3 August 2022 the plaintiff commenced proceedings in the Supreme Court of New South Wales against the two corporate defendants, among others, to "enforce the Loan Term Sheet and Costs Agreement and to claim the amount payable under the same". In paragraph 23 he seeks an order for specific performance to compel the corporate defendants to take the required steps to register charges over the subject properties "as agreed to by the defendants pursuant to, among others, the Loan Term Sheet and Costs Agreement… in order to secure the Amounts Payable with capital being claimed by the plaintiff in the Australian Proceedings pending determination of the same".
The affidavit by Mr Thambyrajah in support of the charge proceedings against the two individual defendants contains similar assertions, although in differently numbered paragraphs.
The defendants rely on expert opinions of Alan Adrian Gomez, a Malaysian lawyer, as to Malaysian law. His qualifications were not disputed. His opinions were expressed in two expert reports dated 7 March 2024 and a supplementary report dated 8 April 2024.
The defendants rely on Mr Gomez's opinion, in paragraph 17 of his first report, that in order for the Court in Malaysia to decide the two registration of charge proceedings it will be necessary for the Court to determine finally whether a binding agreement or agreements were formed between the parties, whether there is an amount of money owing under those agreements which would support a charge over the defendants' properties, and whether the charging clause in the agreement grants the plaintiff an entitlement to a charge over the defendants' properties to secure those monies. The defendants contend that those issues are central to the dispute in the proceedings in this Court.
The defendants referred to Mr Gomez's opinion in paragraph 32 of his first report that the enforcement of a foreign judgment in Malaysia could be effected through either statutory enforcement or the common law rule of enforcement, although Australia is not a country listed in the Reciprocal Enforcement of Judgments Act and it is therefore arguable, pursuant to provisions of that Act, that the Australian judgment for a sum of money will neither be recognised or enforced in Malaysia. The defendants disputed the plaintiff's reliance on Mr Gomez's opinions in paragraphs 33 and 34 in his first report about the challenges in the process of enforcing Australian judgments in Malaysia. The defendants submitted that such challenges must have been considered by the parties when they decided to govern their agreement by the law of New South Wales and submit to the jurisdiction of this Court and when the plaintiff chose to commence proceedings in this Court.
The defendants rely on Mr Gomez's opinion in paragraph 17 of his supplementary report that he disagreed with the opinion expressed by the plaintiff's expert, Mr Rishwant Singh, that if the plaintiff's registration of charges actions were stayed by an order of this Court, the plaintiff would be at risk of losing its caveats over the defendants' land. The basis for this disagreement was stated to be that the plaintiff has taken "timeous" steps to enforce its claim to interests in the lands by filing the registration of charge applications, that if this Court granted the anti-suit injunction it would be open to the plaintiff to seek a temporary stay of those applications, that the Malaysian Courts would consider a temporary stay in those circumstances, and it is not a foregone conclusion that the Malaysian Court will automatically strike out the charge applications if this Court grants the anti-suit injunction. The defendants rely on Mr Gomez's opinion that the plaintiff could seek to have its caveats maintained pending disposal of the New South Wales proceedings.
After the hearing of this application I was informed that the Low Teo Caveat Extension of Time Application was heard in the High Court of Malaya at Kuala Lumpur on 18 April 2024 and that Court made orders, or will make orders, the effect of which are that the caveats are extended until the final disposal of the proceedings in this Court.

[4]

Plaintiff's Evidence

The plaintiff relied on the contract documents as the basis of its claim.
The plaintiff relied on the affidavit of Christopher Farah, the plaintiff's solicitor, of 25 February 2024, as to how the registration proceedings arose. Mr Farah referred to the plaintiff's Malaysian lawyers conducting searches from March 2023 in respect of land owned by the defendants. He said caveats were lodged on properties owned by the corporate and individual defendants in July, September and October 2023. Mr Farah said in November 2023 the plaintiff's Malaysian solicitors received notices of intended removal of caveats in respect of most of the properties on which caveats had been lodged. Mr Farah stated that in December 2023 the plaintiff's Malaysian solicitors issued letters of demand to the individual defendants, Mr Low and Ms Teo, requesting that all of the notices of intended removal of caveats be withdrawn and those defendants take all required steps to register charges on the subject properties in favour of the plaintiff.
Mr Farah stated that in December 2023, the defendant's Malaysian solicitors replied that if the plaintiff did not allow the removal of the caveats the two individual defendants would commence proceedings against the plaintiff in Malaysia for wrongful entry of caveats.
Mr Farah stated that on 22 December 2023, the plaintiff commenced the caveat extension of time application and the application for registration of charges against the two individual defendants, Mr Low and Ms Teo.
Mr Farah stated that in January 2024 the plaintiff received notices of intention to remove caveats in respect of caveats lodged on the properties owned by the two corporate defendants, and on 13 February 2024 the plaintiff commenced the caveat extension of time application and the application for registration of charges against the two corporate defendants.
Mr Farah stated that the defendants have participated in and contested the Malaysian proceedings.
The plaintiff relies on the expert opinion of Rishwan Singh, Malaysian solicitor, in his reports of 24 February 2024 and 2 April 2024. Mr Singh's qualifications were not disputed.
The plaintiff relies on Mr Singh's statements at paragraph 14 of his first report about the Torrens title system of land registration in Malaysia, governed by the National Land Code, his description of the system of caveats in paragraph 15 of his first report, and at paragraph 16 of his first report that caveats are a temporary measure to preserve the status quo pending proceedings being brought and prosecuted "timeously" to enforce the applicant's claims for an interest in the land.
The plaintiff relies on Mr Singh's opinion as the reason why the plaintiff had to commence the registration of charge proceedings as well as the extension of caveat proceedings, as necessary to support the continuation of its caveats. The plaintiff relies on Mr Singh's opinion in paragraphs 33 and 34 of his second report that if the plaintiff's registration of charge proceedings are struck out, because the plaintiff is restrained by order of this Court from prosecuting those proceedings, the plaintiff is at risk of losing its caveats over the defendants' land. The plaintiff relied on Mr Singh's reference to a case in Malaysia which ordered the Registrar General to register a charge presented to him, in support of its submission that the orders it seeks in the Malaysian registration of charges proceedings require consideration of the Malaysian National Land Code and the co-operation of the Registrar of Titles in Malaysia, so that this Court cannot make the same orders as sought in those proceedings.
The plaintiff relied on Mr Singh's reference to s 241 of the National Land Code, which provides that land may be charged under that Act with the repayment of a debt. (I note that the terms of that provision tend to suggest a debt must be proved to obtain a charge, as the defendants submit).
The plaintiff sought to rely on Mr Gomez's opinion in paragraph 32 of his March report that "It is arguable that the Australian judgment will be neither recognised nor enforced in Malaysia", and that Mr Gomez explained in paragraphs 33-34 of that report how a judgment of an Australian court for a definite sum could be enforced in a Malaysian court under the common law.

[5]

Relevant principles and statutory provisions

In CSR Ltd v Cigna the High Court said:

A court's power to protect the integrity of its processes once set in motion is the power that authorises the grant of anti-suit injunctions. A court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if the foreign proceedings interfere with or have a tendency to interfere with proceedings pending in that court, in order to protect the court's own proceedings or processes (at page 23).
Relevant issues are whether proceedings are vexatious and oppressive or brought in the unconscientious exercise of a legal right (at 23).
Proceedings will be considered vexatious and oppressive when there is pending litigation in a court in which complete relief may be had and a party to the suit institutes proceedings abroad (at 23-24).
The mere existence of proceedings in different countries do not constitute vexation or oppression if the proceedings in the other country will give other or additional remedies beyond those attainable in the domestic forum. Foreign proceedings are to be viewed as vexatious and oppressive if there is a complete correspondence between the proceedings or if complete relief is available in the local proceedings (at 24).
It may be that the bringing of proceedings with respect to one claim is properly to be seen, in the circumstances of the case, as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct, such that it would be unconscionable for that other claim to be pursued or for proceedings to be commenced in another jurisdiction. In cases of that kind an injunction may issue in restraint of the subsequent proceedings (at 24).
Injunctions in restraint of proceedings in foreign courts recognise that although such an injunction operates in personam, it nevertheless interferes with the processes of the foreign court and that will be perceived as a breach of comity by that court. For this reason, the power to grant injunctions in restraint of foreign proceedings should be exercised with caution (at 25).
When considering the central question of which court should hear and determine the matter in issue, where the courts concerned are an Australian court and a court of another country, there is the further question of whether the Australian court is an appropriate forum in the Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 sense of it not being a clearly inappropriate for the determination of the matter.
The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction (at 26).
The effect of an anti-suit injunction has the consequence that the issues are determined in the court granting the injunction; the injunction is effectively final in relation to the overseas proceedings (at 26).

I was referred to and considered a number of other authorities which have applied and emphasised those principles.
In addition the plaintiff sought to rely on Du Bray v McIlwraith [2009] NSWSC 888 per Barrett J at [41], that an order of this Court "confirming a right to possession of New Zealand land could not be enforced against the land by process of a New Zealand court" by analogy with what the plaintiff submits is the situation in respect of land in Malaysia.
The defendants submitted that Du Bray being a possession case, it was dealing with different issues, and relied on s 4 of the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW). That Act is entitled "An Act to remove the limitation on the jurisdiction of the courts of this State with respect to land situated outside the State". Section 3, entitled "Jurisdiction with respect to foreign land (the Mozambique rule abolished)", provides: The jurisdiction of any court is not excluded or limited merely because the proceedings relate to or may otherwise concern land… situated outside New South Wales.
Section 4 provides: A court is not required to exercise jurisdiction under this Act if the court considers that it is not the appropriate court to hear the proceedings.
The plaintiff relied on a decision of the Family Court in Dacey v Dacey & Anor [2013] FamCA 638 that that Court was not the appropriate court to hear proceedings about a dispute about rights to possession of land in another country. Having read that decision, I am of the view it does not assist on issues in this case, having dealt with different issues, as Senior Counsel for the plaintiff acknowledged.
Both parties referred me to Talacko v Talacko [2009] VSC 349, in which Kyrou J said: "[15] Under the rule in British South Africa Co v Companhia de Moçambique, a Victorian court will not generally exercise jurisdiction in respect of the title to, or possession of foreign land. However, that rule does not apply to an action in contract or based on a personal equity between the parties. For example, courts of equity have jurisdiction in personam in relation to foreign land against persons present within the forum in cases of contract, fraud and trust. … [17] Whether a judgment of this Court will be enforceable in a foreign court is relevant to the assumption or exercise of jurisdiction by this Court. Generally, the Court will not assume jurisdiction where it is satisfied that any order it may make will not be effective. However, this is a matter that goes to the Court's discretion rather than its jurisdiction as such. [18] Whether a judgment of this Court will be enforceable in a foreign court will depend on the rules applicable in the foreign jurisdiction. Normally this Court will assume that its judgments and orders will be recognised and enforced by foreign courts. However, if it is shown that the judgment will not be enforced in the foreign jurisdiction where it must be enforced in order to be effective, this Court may, in its discretion, decline to assume jurisdiction on the basis that to do so would be ineffective. … [21] In these circumstances, I conclude that there is a possibility that a judgment of this Court will be enforced by the Czech courts. Although I am unable to quantify the possibility, its existence is sufficient to persuade me, as a matter of discretion, to exercise jurisdiction in this matter. This is because I regard the circumstances of this case as being exceptional, for the reasons I will discuss shortly."

[6]

Defendants' submissions

The defendants rely on three of the Cigna grounds in support of their application that the Court should grant the injunction. They are to protect against interference with this Court's processes, that the plaintiff having elected to commence proceedings in this Court, and having conducted those proceedings for over two years, is estopped from changing venue, and that the proceedings are vexatious and oppressive because the expedited determination of the Malaysian proceedings, considering the same issues as the New South Wales proceedings, has the potential to frustrate the defendants' ability to rely on a judgment of this Court in the New South Wales proceedings.
The defendants submitted that both sets of proceedings will require determination of the same issues. The defendants submit that to determine the charge proceedings, the Malaysian Court would have to determine whether or not there is a binding agreement between the parties, whether there was any money owed and whether the charging clause in the Costs Agreement gave the plaintiff an entitlement to a charge over the defendants' properties. The defendant submitted that those issues are central to the dispute in the proceedings in this Court, and there is a real and obvious risk of inconsistent findings. The defendants submitted that in deciding those issues the Malaysian Court would have to apply New South Wales law, but without the defendants having the benefit of the Australian Consumer Law defences they seek to rely on, which can only be considered in an Australian court, they being brought pursuant to Commonwealth statutory provisions: Home Ice Cream v McNabb Technologies.
The defendants submit that the plaintiff's commencement of overlapping proceedings in Malaysia amounts to an interference with the processes of this Court because if determined, the Malaysian proceedings would give rise to a res judicata or issue estoppels, which is an obvious prejudice to the defendants. The defendant submitted that if the charge proceedings are determined in Malaysia before the New South Wales proceedings are, which seems likely, that gives rise to the probability that the parties to the New South Wales proceedings would be subject to issue estoppels, for example, if the Malaysian Court determines that the agreement was binding, and the defendants would lose their ability to rely on the defences on which they rely in this Court, including the Australian Consumer Law defence only available to them in Australia.
The defendants submit that the plaintiff gains nothing from the Malaysian proceedings that it could not obtain in the New South Wales proceedings. The defendants submit that this Court can make orders against the defendants in respect of their properties in Malaysia, because what the plaintiffs are seeking in the Malaysian proceedings are orders against the defendants, not against the Malaysian equivalent of the Registrar General of Land Titles. The defendants submit that orders could be made by this Court requiring the defendants to take all required steps to register charges over their properties, and this Court can make orders in relation to land outside New South Wales pursuant to s 3 of the Jurisdiction of Courts (Foreign Land) Act 1989.
The defendants submit that this Court is the most appropriate forum in the Voth sense because the resolution of the dispute requires a determination, applying Australian law, of the meaning of the agreement between the parties, between parties who have submitted to the jurisdiction of this Court and the plaintiff has invoked this Court's jurisdiction. Therefore, the defendants submit that this Court is not, as the plaintiff suggests, an obviously inappropriate forum for resolution of the dispute.
The defendants submit that the plaintiff made a forensic choice to bring proceedings in two separate courts, when it could and should have brought them in one. The defendants submit that because the plaintiff can obtain in this Court the relief it seeks in the Malaysian charge proceedings, which the defendants submit do not require the application of any statutory power, then it is not appropriate that the plaintiff, having commenced proceedings in this Court in 2022 seeking to enforce rights under the agreement, commenced a second set of proceedings in Malaysia seeking to enforce a small part of the same agreement. The defendants submit the Malaysian proceedings overlap entirely with the central issue in the proceedings in this Court. The defendants submit that the plaintiffs having commenced overlapping proceedings in Malaysia after commencing proceedings here is conduct giving rise to an estoppel.
In response to the plaintiff's submission that the plaintiffs had to commence the charge proceedings in Malaysia to protect its caveats, the defendants submit that the plaintiff chose to not seek a declaration in respect of the charge in the New South Wales proceedings. The defendants submit the plaintiff initiated the process in Malaysia by lodging caveats after it had commenced proceedings here.
The defendants submitted that their having defended the Malaysian proceedings should not be weighed in the balance against them as they could not allow a default judgment to be entered against them by not defending those proceedings.
The defendants submitted that if the plaintiff had sought all its relief in this Court, it could not seek to have the charge question determined separately in advance of all the other issues to be determined.
The defendants submitted they are not required to have sought a stay or dismissal of the Malaysian proceedings in order for the injunction sought to be granted. They accept it is a consideration in the exercise of the Court's discretion, but not determinative.
The defendants submitted that they would be required to defend the same case twice in a short time and where some of their defences would not be available to them in Malaysia, and the defendants would have already suffered the prejudice from the determination of the Malaysian proceedings sought to be avoided by the injunction they seek. The defendants submit that the undertakings offered by the plaintiff would mean that the plaintiff would enjoy the benefits of, and the defendants suffer the burden of, final relief from the Malaysian proceedings pending the outcome of the New South Wales proceedings, and charges on their properties are a burden. The defendant submitted the plaintiff's undertakings do not address the need for the defendants to defend the same case twice. The defendant submitted that it is not clear how the undertakings offered by the plaintiffs would work if the Malaysian proceedings were decided first, as appears likely.
The defendants submitted that the plaintiff's submission that any undertaking as to damages the defendants would give in support of the injunction sought would be valueless, because the defendants do not have assets in Australia, is not tenable and misunderstands the purpose of an undertaking as to damages. In correspondence tendered, the defendants' solicitor had responded to the assertion by the plaintiff's solicitor that any undertaking the defendants could give would be "hollow" and "commercially valueless", that such an assertion was inconsistent with the plaintiff having placed caveats on the defendants' properties in Malaysia and seeking to register charges over that land.
In respect of the balance of convenience the defendants submitted that the plaintiff has the protection of its caveats, but to allow the Malaysian proceedings to continue would result in important issues in the New South Wales proceedings being determined finally by the Malaysian Court, rendering futile the protection offered to the defendants by the Australian Consumer Law and giving rise to res judicata or issue estoppels.

[7]

Plaintiff's submissions

The plaintiff submitted that it is not necessary that one or other proceeding should be stayed or restrained.
The plaintiff's essential position is that despite the overlap in the proceedings the plaintiff is not engaging in any abuse of the processes of this Court or any unconscionable conduct by commencing and continuing the charge proceedings in Malaysia because this Court cannot make any enforceable order that charges be registered over land in Malaysia.
Therefore the plaintiff submitted it has something more to be gained from the Malaysian proceedings. The plaintiff submitted the Malaysian proceedings do not directly interfere with or impact on the New South Wales proceedings.
The plaintiff submitted it is seeking different relief in the Malaysian registration of charge proceedings which is not sought in the New South Wales proceedings. The plaintiff submitted that although the Amended Statement of Claim in the New South Wales proceedings pleads the charging clause, no relief is sought in respect of it in the New South Wales proceedings, but the plaintiff has sued in New South Wales only for the money it says it is owed pursuant to the agreement.
The plaintiff submits the Malaysian Court will not determine the precise amount to be secured by the charges, and therefore because the Malaysian Court will not have to determine the amount of the debt, there will not be a res judicata from the Malaysian proceedings, only issue estoppels. Further, the plaintiff submitted there will not be any issue estoppel in relation to any claim under the Australian Consumer Law, because such a claim only arises to set aside the contract if the contract is found to be binding.
The plaintiff submitted that although this Court would have power to make a declaration as to the existence of equitable charges it does not have power to order that charges be registered under the National Land Code in Malaysia, because the registration of charges requires action by the Malaysian Registrar of Titles and this Court has no power to order that person or authority to act. In this regard, the plaintiff relies on the statutory provisions in the Malaysian National Land Code, referred to on the front page of its Originating Summonses in the two registration proceedings. It submits the creation of a charge over land in Malaysia is the subject of the Malaysian statutory scheme.
The plaintiff submitted that the Malaysian Registrar of Titles may cooperate with an order of a Malaysian court even if it is not a party to the proceedings, but it is unlikely the Malaysian Registrar of Titles would follow an order of this Court that there should be a charge registered.
The plaintiff submitted that this Court would be unlikely to make orders against the defendants to have charges registered in Malaysia because the only apparent sanction, by way of contempt, is against persons and companies resident and physically outside the jurisdiction.
The plaintiff submitted that this Court does not have the power to extend the caveats on the defendants' lands in Malaysia.
The plaintiff submitted that Australian judgments cannot be registered in Malaysia under the Reciprocal Enforcement of Judgments Act, and arguably will not be recognised or enforced. The plaintiff submitted that recognition of judgments at common law in Malaysia appears to be limited to money judgments for a definite sum. The plaintiff submitted that whereas in Talacko, the Court found there was a possibility of enforcement of the judgment of that Court, in this case there is no evidence of any possibility of enforcement of a judgment of this Court.
The plaintiff submitted that because of the doubts or uncertainty about this Court's ability to make enforceable orders to cause charges to be registered in Malaysia, this Court is an inappropriate forum for proceedings of the registration of charges in Malaysia and this Court should not interfere with the Malaysian proceedings.
The plaintiff submitted there should be no estoppel against the plaintiff because the plaintiff had to take "timeous" action, that is it had to commence the registration of charges proceedings to maintain its caveats lodged against the plaintiff's properties in accordance with Malaysian law. Therefore, the plaintiff submitted it was not an election or forensic choice to do so, although the plaintiff submitted that the non-exclusive jurisdiction clause in the agreement permits the plaintiff to sue outside New South Wales. The plaintiff submitted it was not unconscionable for the plaintiff to commence and continue proceedings which it had to commence in Malaysia in order to protected its caveats. For this reason, and because of the undertakings offered by the plaintiff, the plaintiff submitted that the Court should not accept the submission by the defendant that the dominant purpose of its commencing the Malaysian proceedings was to frustrate the New South Wales proceedings.
The plaintiff submitted that the mere coexistence of overlapping proceedings in different countries is not vexatious or oppressive, and the costs and inconvenience of defending two overlapping proceedings is not a basis to order an injunction.
The plaintiff submitted that by issuing notices to remove the caveats the defendants triggered the Malaysian charge proceedings and by defending those proceedings the defendants have contributed to the prejudice they claim to have suffered.
The plaintiff submitted that the defendants' conduct in defending the Malaysian proceedings has given rise to an estoppel, and that the defendant should have sought a stay or injunction immediately rather than waiting for nearly two months to seek an injunction. The plaintiff accepted that it was not a requirement that the defendants had sought a stay of the Malaysian proceedings, but submitted that it is an important factor to be considered. The plaintiff submitted that the defendants' defence of the Malaysian proceedings should weigh against the defendants in the exercise of the Court's discretion.
To protect against the prejudice the defendants claim they will suffer if the injunction is not granted and the Malaysian proceedings are determined first in favour of the plaintiff, the plaintiff offered the following undertakings: 1. That it will honour the outcome of the New South Wales proceedings, including any appeals, in Malaysia, including in respect of any charges registered or caveats continued as a consequence of any of the current Malaysian proceedings; and 2. That it will not assert any issue estoppels in the New South Wales proceedings arising out of the registration of charge applications.
The plaintiff submitted that its undertaking to honour the judgment of this Court in Malaysia deals with the defendants' concerns if the Malaysian proceedings are heard first and the defendants succeed in the New South Wales proceedings which are heard second. The plaintiff submitted that its proffered undertakings mean that the plaintiff will not assert in the New South Wales proceedings any issue estoppel that might arise from the Malaysian proceedings if they are heard first, so the Malaysian proceedings will not interfere with the New South Wales proceedings. The plaintiff submits that if it were to succeed in the Malaysian proceedings and not succeed in the New South Wales proceedings, it would respect the result of the New South Wales proceedings and would remove the charges in Malaysia.
Therefore the plaintiff submitted the Court should accept the undertakings the plaintiff offered and not grant the injunction sought by the defendants.
The plaintiff submitted that the prejudice to the plaintiff if the injunction is granted is significant because it will be prevented, until the New South Wales proceedings are determined, from pursuing registration of charges, which is substantial prejudice in that it will risk losing its caveats over the Senibina properties (the Low Teo caveats having been extended) and risk losing priority of its charges over other interests in the properties. The plaintiff submitted the determination of the New South Wales proceedings is likely to take a long time.
The plaintiff submitted that the defendants' undertakings as to damages are not sufficient or enforceable to satisfy any losses to the plaintiff if an injunction is granted because the defendants have no assets in the jurisdiction. The plaintiff submits that if it loses its caveats as a result of an injunction being granted, it will suffer significant prejudice.
The plaintiff submitted that this Court would be cautious to interfere with the processes of a court of another country, especially where those proceedings are ready for hearing. The plaintiff submitted that also relevant to the question of comity is that this Court is being asked to restrain proceedings in the Malaysian Court about Malaysian land.

[8]

Consideration

The Malaysian proceedings interfere with, or have a tendency to interfere with, the integrity of the proceedings in this Court. The Malaysian proceedings are due to be heard first. They will have to determine whether there was a binding agreement or agreements between the parties, and whether money was owed by the defendants to the plaintiff pursuant to that agreement or agreements, even if the Malaysian Court is not required to determine the precise sum to make orders as to charges on properties. The terms of s 241 of the National Land Code, referred to in [40] above, appear to require that a debt must be proved to obtain a charge. If the Malaysian Court so determines, that will create at least issue estoppels for the defendants in the proceedings in this Court, which the plaintiff commenced here and has maintained here. The defendants would have to defend the Malaysian proceedings without having available to them the Australian Consumer Law provisions which are only available to them here.
I am satisfied this Court can make orders in respect of land in Malaysia pursuant to s 3 of the Jurisdiction of Courts (Foreign Land) Act. I am satisfied this Court can order the defendants to take all required steps to register charges over all the properties in favour of the plaintiff, which would include the defendants requesting the Registrar of Titles in Malaysia to register the charges. The defendants having submitted to the jurisdiction of this Court and participated in the proceedings in this Court, indeed, quite actively, there is not demonstrated a basis for concern that they would disobey such an order of this Court.
However, I am satisfied by the expert opinion of Mr Gomez that a judgment of this Court can be enforced in Malaysia.
Therefore there is nothing more the plaintiff can obtain in the Malaysian proceedings that it cannot obtain in the proceedings in New South Wales, even if it has not to date sought such orders.
For the reasons stated above, this Court is not an inappropriate forum to determine the issues between the parties.
I am unable to find on the basis of the material before me that the plaintiff commenced the Malaysian proceedings for the purpose of frustrating the New South Wales proceedings and has therefore acted unconscionably, but the plaintiff's commencement and pursuit of the Malaysian proceedings, which require determination of the same issues as in the New South Wales proceedings, will have the effect of frustrating the defendants' defence of the New South Wales proceedings and in that sense, interfere with the proceedings in this Court.
I am not satisfied that the undertakings offered by the plaintiff are sufficient to deal with the prejudice the defendants will suffer if the Malaysian proceedings are pursued, maintained and determined first. It is not clear how they would work. The proffered undertakings seem inconsistent with the plaintiff's pursuit of the Malaysian proceedings.
I am not persuaded that the defendants' undertaking as to damages is "hollow" or valueless, having regard to the information about the value of the defendants' properties in Malaysia in the email of Marc Baddams of 8 April 2024 in the course of correspondence between the parties about the defendants' undertaking as to damages.
I have borne in mind the issues of comity.
I have borne in mind the plaintiff's concern that if its Malaysian charge proceedings were restrained it would risk losing its caveats over the Senibina properties. As the Low Teo caveats have been extended by the High Court of Malaya that may not be a high risk. I am not persuaded that the defendants' property interests in Malaysia are such that the plaintiff is at risk of not having its judgment satisfied if it were to succeed in the proceedings in this Court. Further, the potential risk to the plaintiff of losing the Senibina caveats can be compensated by damages. However the prejudice to the defendants if the Malaysian proceedings continue and are determined in the plaintiff's favour on 13 May 2024 cannot be overcome.
The defendants' having defended the Malaysia proceedings to date should not be weighed against them, as it is not apparent what other course they could have taken to defend their interests. Nor can it be said they delayed in filing their Notice of Motion to seek these orders.
Having considered all of the matters raised I am of the view the balance of convenience requires that this Court intervene to restrain the plaintiff's pursuit of the Malaysian proceedings to protect the integrity of the proceedings extant in this Court.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)

Cited By (1)