IBC TOURS CORPORATION (MALAYSIA) SDN BHD v GO & AWAY TRAVEL TOURISM SDN BHD

Case Significance

Illustrates the threshold for leave to commence committal proceedings under Order 52 rule 3 of the Rules of Court 2012, requiring a prima facie case that the proposed contemnor deliberately and wilfully disobeyed the order to the criminal standard, leave being refused where the conduct was consistent with a bona fide mistake promptly remedied.

This High Court decision concerns an application for leave under Order 52 rule 3 of the Rules of Court 2012 to commence committal proceedings against a company director for contempt, for allegedly breaching an interlocutory order. The plaintiff had obtained an ad interim injunction restraining the defendant from acting on a statutory notice and from filing a winding-up petition pending disposal of related applications, in the context of a long-running dispute in which the defendant had earlier obtained a monetary judgment against the plaintiff for unpaid invoices, affirmed on appeal, with a further appeal pending. The plaintiff alleged that the defendant's director had defied the injunction. The court restated that on an application for leave to commit, the applicant must establish a prima facie case of contempt — a sufficient basis, on careful scrutiny of the evidence, that the proposed contemnor deliberately and wilfully disobeyed the court's order, to the criminal standard of proof beyond reasonable doubt. Examining the record, the court found that it disclosed only a procedural history of the withdrawal and replacement of a winding-up petition and communications between counsel, that the defendant had obtained the plaintiff's consent before withdrawing the first petition and had signalled its intention to file a replacement, and that the defendant understood the order to prevent advertising rather than the mere filing of a petition. The court held that where immediate remedial steps are taken and the explanation is consistent with inadvertence or a bona fide mistake, it will be slow to deprive a person of liberty absent proof beyond reasonable doubt of deliberate defiance; the defendant's solicitors had acted early to discontinue the petition once the irregularity was identified. Finding no prima facie case of contempt, the court dismissed the leave application with costs of RM3,000. The judgment illustrates the threshold for granting leave to commence committal proceedings.