PUNCAK GALI HARMONI SDN BHD v EMRAIL SDN BHD

Case Significance

Illustrates how the court treats an ancillary procedural application, such as an application to expunge late-filed materials, as academic once the principal interlocutory application to which it is attached has been heard and disposed of.

This High Court decision at Shah Alam addresses a narrow procedural question arising in the course of interlocutory arbitration-related proceedings between the plaintiff, Puncak Gali Harmoni Sdn Bhd, and the defendant, Emrail Sdn Bhd. The ruling concerns the plaintiff's application to expunge, disregard and exclude from the record certain materials that the defendant had filed shortly before the rehearing of the plaintiff's application for interim injunctive relief. The impugned materials were the defendant's additional affidavit, a further bundle of authorities, and the portions of the defendant's further submissions that referred to and relied upon those materials. The plaintiff complained that the materials had been filed late, without leave of court, and after the plaintiff had filed its written submissions, so that it was deprived of a fair opportunity to answer them and they ought not to be used for the interim injunction application. The defendant opposed the application, contending that it was filed at the eleventh hour, was not a proper vehicle to derail the injunction hearing, and had become academic once that hearing had taken place. The court, per Asmah binti Musa JC, identified the true nature of the expungement application as an ancillary procedural application directed only at the materials relied upon for the interim injunction application; it sought no substantive relief on the underlying dispute. Because the interim injunction application had by then been heard and dismissed, the court held that the expungement application no longer retained any live or practical purpose and had been overtaken by that disposal. It therefore disposed of the expungement application as academic, making clear that this was not a determination on the merits of the procedural complaints, that no pronouncement was made on the correctness of the defendant's late filing, and that the order did not determine the merits of the underlying dispute, with costs to be costs in the cause. The judgment is a useful illustration of how a court treats an ancillary procedural application that is rendered academic by the disposal of the principal application to which it is attached.