Date and Time: Wednesday, 28 October, 2020 8:52:00 PM MYT

Job Number: 128715593

Document (1)

1. LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR, [1982] 1 MLJ 217
Client/Matter: -None-
Search Terms: [1982] 1 MLJ 217
Search Type: Natural Language
Narrowed by:
Content Type Narrowed by
MY Cases -None-

| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2020 LexisNexis
 Page 2 of 5
LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR

LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR

CaseAnalysis | [1982] 1 MLJ 217

LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR [1982] 1 MLJ 217
Malayan Law Journal Reports · 2 pages

OCJ JOHORE BAHRU

YUSOF ABDUL RASHID J
CIVIL SUIT NO 270 OF 1981
24 August 1981

Case Summary

Practice and Procedure — Anton Piller Order — Action for declaration that plaintiffs were beneficial owners
of land and that defendant was holding land in trust for the plaintiffs — Application ex parte to authorise
plaintiffs to enter premises of defendant and to take into custody documents which were essential
evidence in action allowed

In this case the plaintiffs sought a declaration that they were beneficial owners of a piece of land in Johore Bahru
and that the first defendant was holding the said land in trust for the benefit of the plaintiffs. The plaintiffs applied ex
parte for an "Anton Piller" order to authorise the plaintiff's representatives to enter the premises of the first
defendant and to take into custody those documents which were essential evidence in the action.
Held,allowing the plaintiffs' application: in this case as the plaintiffs had proved a strong prima facie case against
the first defendant that he held the said land in trust for the plaintiffs, that there was a serious danger of the first
defendant destroying the trust deed and files relating to the said land and that the first defendant was in possession
of such trust deed and files, the court would issue the order applied for.
Editorial Note

See article "The 'Anton Piller' Order" [1982] 1 MLJ vi.

Cases referred to

Anton Piller Kg v Manufacturing Processes Ltd & Ors [1976] 2 WLR 162

Yousif v Salama [1980] 3 All ER 405

Rank Film Distributors Ltd & Ors v Video Information Centre & Ors [1981] 2 WLR 668; [1981] 2 All ER 76
CIVIL SUIT

T Thomas for the plaintiffs.

YUSOF ABDUL RASHID J

The plaintiffs through the Official Receiver of Malaysia who has been appointed by the court as liquidator of the
 Page 3 of 5
LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR

plaintiffs which are in the process of being wound-up, filed a writ seeking, inter alia, for a declaration that they are
the beneficial owners of a piece of land held under Grant 6705 Lot 2084 in the Mukim of Tebrau in the District of
Johore Bahru (the "said land") and that the first defendant is holding the said land in trust for the benefit of the
plaintiffs. To prevent the destruction of the Trust Deed and the relevant files relating to the purchase of the said land
from the former proprietors thereof, the plaintiffs applied to court for the custody of all those documents relevant to
the action instituted in court which were believed to be in the custody of the first defendant. However, such
application could not possibly be made inter partes for fear that the first defendant might destroy or conceal them to
defeat the ends of justice. As such, the plaintiffs applied ex parte for an "Anton Piller"order to authorise the plaintiffs'
representatives to enter the premises of the first defendant and to take into custody those documents which are
essential evidence in the action.

The application was supported by an affidavit deposed by the Official Receiver Malaysia wherein it was disclosed
that the first defendant had admitted to one, P.C. Dowson, the Assistant Registrar General in the Official Receiver's
Office in Hong Kong that though he (the first defendant) was the registered proprietor of the said land, he was in
fact holding it in trust for an unidentified company in the Mosbert Group of which the plaintiffs were one of them.
From the plaintiffs' records it was disclosed that the plaintiffs were the beneficial owners of the said land though the
first defendant was the registered proprietor thereof. The first defendant had affirmed in an affidavit, attached to the
supporting affidavit of the Official Receiver Malaysia, that he was the registered proprietor of certain other pieces of
land in the Mukim of Pulai Johore Bahru but in fact he was holding them in trust for other companies in the Mosbert
Group. Exhibited to the supporting affidavit was a letter written by the first respondent to one, Ng Kong Yeam,
admitting that he was holding the said land in trust. It was also admitted that a Trust Deed was executed in relation
to the said land.

It has come to my attention that in relation to the said land, the first defendant, in breach of the said trust, had
entered into a Sale and Purchase Agreement with one Ng Kam Loon on January 26, 1980 purporting to sell the
said land for $120,000 for which the first defendant had accepted a sum of $12,000 as deposit and part payment
towards the purchase price of the said land. The sale could not be completed since the plaintiffs had entered a
caveat against the said land to protect their interests therein. On record, it was revealed that the first defendant by
an Originating Motion No. 15 of 1981 had applied to the Johore Bahru High Court for an order to have [*218]
the said caveat removed in order to effect the sale of the said land.

On the evidence before me I was satisfied that though the first defendant was the registered proprietor of the said
land, he was holding it in trust for the plaintiffs. I was also satisfied that in breach of the said trust the first defendant
had entered into a Sale and Purchase Agreement to dispose of the said land. It was also established that the first
defendant was in possession of a file dealing with the purchase of the said land from the previous proprietor and
had executed a Trust Deed in relation to the said land. With these facts in mind I dealt with the application of the
plaintiffs for an "Anton Piller"order. I had no doubt at all that under section 233(1) of the Companies Act 1965, the
Official Receiver Malaysia was entitled to take into custody or control all properties to which the plaintiffs were or
appeared to be entitled and under section 277(5) of the said Act, the Official Receiver Malaysia was at liberty to
apply to court for an order that the first defendant as trustee regarding the said land to deliver, convey or surrender
all books and papers in his possession to the Official Receiver Malaysia and to which the plaintiffs were prima facie
entitled to.

To recover the Trust Deed and relevant file in relation to the said land from the first defendant, the plaintiffs had
applied for an "Anton Piller" order and in considering the application I had to satisfy myself whether or not the
circumstances existing at the time of application would justify me in granting such order.

It had been said in the English Court of Appeal case of Anton Piller Kg v Manufacturing Processes Ltd & Ors [1976]
2 WLR 162 that in most exceptional circumstances the court has an inherent jurisdiction to issue such an order. In
that case the defendants were the United Kingdom agents of the plaintiffs, German manufacturers of frequency
converters for computers. The plaintiffs claimed that the defendants were in secret communication with other
German manufacturers and were giving them confidential information about the plaintiffs' power units and details of
 Page 4 of 5
LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR

a new converter, the disclosure of which could be most damaging to the plaintiffs. In order to prevent the disposal
by the defendants, before discovery in an action, of documents in their possession relating to the plaintiffs'
machines or designs, the plaintiffs applied ex parte for an interim injunction to restrain the defendants from
infringing their copyrights and disclosing confidential information and for an order for permission to enter the
defendants' premises to inspect all such documents and to remove them into the plaintiffs' solicitors' custody. On
the plaintiffs' undertaking to issue a writ forthwith, Brightman J. granted the interim injunction but refused to order
inspection or removal of documents.

On the plaintiffs' ex parte appeal, which was heard in chambers with judgments later in open court, the English
Court of Appeal held that in most exceptional circumstances, where plaintiffs had a very strong prima facie case,
actual or potential damage to them was very serious and there was clear evidence the defendants possessed vital
material which they might destroy or dispose of so as to defeat the ends of justice before any application inter
partes could be made, the court had inherent jurisdiction to order defendants to "permit" plaintiffs' representatives to
enter defendants' premises to inspect and remove such material; and that in the very exceptional circumstances the
court was justified in making the order sought on the plaintiffs' ex parte application.

Though the English Court of Appeal case of "Anton Piller" dealt with matters relating to copyright, the jurisdiction to
issue such an order was extended to other matters in the English Court of Appeal case of Yousif v Salama [1980] 3
All ER 405. In the latter case the plaintiff purchased goods for the defendants to resell under an agreement whereby
the defendants were to pay the plaintiff commission for the goods supplied. For some years transactions took place
and commission accrued to the plaintiff but was not paid. The plaintiff visited the defendants' office where he saw
the accounts showing the amount of commission due to him. The plaintiffs then issued a writ claiming the amount
owed and, fearing that the defendants might destroy the two files containing the accounts and a diary which
contained details of the transactions, applied for an Anton Piller order permitting him to enter the defendants'
premises to search and locate the files and diary and remove them to the custody of his solicitor. The English Court
of Appeal, in that case, held that —
"The court had a discretion to grant an Anton Piller order to enable the preservation of a document which did not itself form
the subject matter of the action, where (per Lord Denning MR) the document was the best possible evidence and the
plaintiff genuinely feared that the defendant would destroy it prior to the hearing of the action, or (per Donaldson LJ) there
was a very clear prima facie case leading the court to fear that the defendant would conceal or destroy essential evidence
and that to do so would deprive the plaintiff of any evidence on which to put forward his claim and so frustrate the process
of justice, or (per Brightman LJ) there was prima facie evidence that essential documents were at risk…."
The House of Lords had the opportunity of deliberating on the jurisdiction to issue Anton Piller order when the
House dealt with the case of Rank Film Distributors Ltd & Ors v Video Information Centre & Ors [1981] 2 WLR 668;
[1981] 2 All ER 76. In that case the House of Lords held that "in respect of the orders requiring the defendants to
allow access to premises for the purposes of looking for illicit copy films and to allow their being removed to safe
custody, there was jurisdiction to make those orders…".

Thus, in most exceptional circumstances, the court has jurisdiction to order a defendant to permit the plaintiffs'
representatives to enter defendant's premises to inspect and remove vital material which the defendant might
destroy or dispose of so as to defeat the ends of justice before an inter partes application for an injunction could be
made.

The order is for the first defendant to permit the plaintiffs' representatives to enter the office of the first defendant,
who has the right to refuse to allow the plaintiffs' representatives to enter, inspect the relevant files, and to take into
their custody the relevant Trust Deed. In the event of the first defendant refusing permission to the plaintiffs'
representatives [*219]
to enter the premises, the plaintiffs may then bring it to the notice of the court. Should it be proved that the refusal
was unreasonable, appropriate action might be taken against the first defendant, even to the extent of committing
him. By the order, the first defendant is put in peril if he chooses to refuse permission and such refusal would also
occasion adverse inferences being drawn against him.

Since I was satisfied that the plaintiffs had proved a strong prima facie case against the first defendant that he held
 Page 5 of 5
LIAN KEOW SDN BHD v C PARAMJOTHY & ANOR

the said land in trust for the plaintiffs, that there was indeed a serious danger of the first defendant destroying the
Trust Deed and files relating to the said land and that the first defendant was in possession of such Trust Deed and
files, I issued the order accordingly.
Application allowed.

Solicitors: Skrine & Co.

End of Document