Tarikh Pendenciaran : 18.02.

2020

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN DAGANG)
SAMAN PEMULA NO.: WA-24NCC(ARB)-22-0712020

Dalam perkara Timbangtara antara Obnet Sdn

Bhd (No.Syarikat 423095-H) dan Telekom
Malaysia Berhad (No. Syarikat: 128740-P);
Dan
Dalam perkara mengenai Perjanjian Metro
Ethernet Services Agreement bertarikh
19.04.2007 antara Obnet Sdn Bhd dan Telekom
Malaysia Berhad;
Dan
Dalam perkara mengenai Klausa 18 Perjanjian
Metro Ethernet Services Agreement bertarikh
19.04.2007 antara Obnet Sdn Bhd dan Telekom
Malaysia Berhad;
Dan
Dalam perkara mengenai Seksyen 50 Akta
Timbang Tara 2005;
Dan
Dalam perkara mengenai Seksyen 50 dan 51 Akta
Relif Spesifik 1950;
Dan
Dalam perkara Aturan 5 Kaedah 3, Aturan 29,
Aturan 69 dan/atau Aturan 92 Kaedah 4 Kaedah-
Kaedah Mahkamah 2012

Antara
Telekom Malaysia Berhad
[No. Syarikat: 128740-P) ...Plaintif
Dan
Obnet Sdn. Bhd.
[No. Syarikat: 423095-H) ...Defendan

DEFENDANT'S REPLY SUBMISSION

(ENCLOSURE 30 -- Erinford Injunction
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DEFENDANT'S REPLY SUBMISSION

RESISTING PLAINTIFF'S ERINFORD INJUNCTION (Enclosure 39)

Yang Arif,

1. This is the Defendant's Reply to the Plaintiff's Written Submission dated

11.12.2020 in regard to the Plaintiffs Erinford Injunction Application.

2. The Plaintiffs main submission appeared to be centred on the issues of the

Plaintiffs allegation/stand that its appeal would be rendered nugatory and the

further claim that the balance of convenience favours the Plaintiff.

3. It would be noted the Plaintiffs application for Erinford Injunction was essentially

to preserve the order to restraint the Defendant from proceeding with the

arbitration and cause the arbitration to be suspended until after the disposal of the

Plaintiffs appeal to the Court of Appeal.

4. However, we have extensively submitted in the Defendant's Written Submission

that this Court should consider all the factors stated below before an application for

an Erinford Injunction is granted. We summarise the factors which this Court

should consider as follows:

(a) Findings made by this Court on the Plaintiffs Originating Summons

(Enclosure 1) and Plaintiffs Application for inter-partes Injunction

(Enclosure 4)1;

'Defendant's Written Submission at para 3-5, pages 1-2.

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(b) Application of principles of Injunction- particularly the J Jarvis higher

threshold test which was approved by our Federal Court required to injunct

an arbitration proceeding2;

(c) Whether there exist any special circumstance in this matter3?

(d) Whether the Plaintiff's appeal would be rendered nugatory4?

(e) Where does the balance of convenience lies in this matters?

(f) Whether damages would be an adequate remedy for the Plaintiff6?

(g) Whether preservation of status quo would cause injustice to the

Defendant'?

(h) No new facts or reasons advanced by the Plaintiff for its applications;

(i) Whether the Plaintiffs application being fundamentally defective and

without any cause of action against the Defendant, has any reasonable

grounds for the appeal or prospect of succeeding in its appeal?9?

5. We have already submitted extensively on each of the factors stated above and

have shown that the Plaintiff had failed to fulfil any of the conditions above for

a grant of Erinford injunction particularly the higher threshold test required to

injunct an arbitration as confirmed by the Federal Court in the case of Java

Sudhir AL Jayaram v Nautical Supreme Sdn Bhdl° which adopted the J

2Defendant's Written Submission at para 20-29, pages 10-14

8 Defendant's Written Submission at para 35-40, pages 16-19

4 Defendant's Written Submission at para 30-34, pages 14-16

5 Defendant's Written Submission at para 41-50, pages 19-24

6 Defendant's Written Submission at para 51, page 24

7 Defendant's Written Submission at para 52-56, pages 24-26

8 Defendant's Written Submission at para 57-58, pages 26-27

9 Defendant's Written Submission at para 29-62, pages 27-28
io Jaya Sudhir A/L Jayaram v Nautical Supreme Sdn 8hd 2019] 5 MU 1 at Tab 11 of Defendant's Bundles of
Authorities 1 (DBOA(1))
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Jarvis test. Applying the J Jarvis test in this case, this Court already found

that:

(a) An injunction to restraint the Defendant from proceeding with arbitration will

cause injustice to the Defendant/Claimant; and

(b) Since the Plaintiff is at liberty to challenge the final award by the Arbitral

Tribunal after the final award is issued by the Arbitral Tribunal, it would not

be oppressive, vexatious and unconscionable to the Plaintiff.

6. Since this Court already found that the Plaintiff had failed to fulfil the required J

Jarvis test, there can be no issue for the Plaintiff to come back to seek a similar

injunction to restrain the arbitration under the guise of an Erinford Application.

A. Plaintiffs application is premised on fundamentally defective application

7. It is to be noted that the Plaintiff had not dealt with the specific findings made this

Court regarding its Originating Summons (Enclosure 1) and Inter-partes

Injunction (Enclosure 4) particularly on the fact that the Plaintiffs Originating

Summons was fundamentally defective and without any cause of action

against the Defendant. This Court already found that based on this ground

alone the Plaintiffs Application should be dismissed.

8. Therefore, the Plaintiffs application now for an Erinford Injunction is based on

the fundamentally defective Originating Summons and through which is seeking

yet another relief to injunct the Defendant from proceeding with an arbitration,

would be highly irregular and abuse of court process.

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9. As we have already submitted that the reasons stated by the Plaintiff for this

application are NOT new and all the reasons advanced by the Plaintiff have been

considered by this Court and have been dismissed. Nevertheless, for the sake of

completeness, we shall deal with the grounds stated by the Plaintiff.

B. The Nugatory claim unsustainable

10. In its submission, the Plaintiff repeated the followings reasons for its claim that

the Plaintiffs appeal would be rendered nugatory:

(a) The claim that the Tribunal had not published a valid decision;

(b) Claim that the Plaintiff was not in the position to proceed with assessment

of damages;

(c) Claim that the Plaintiff had a fundamental right to an award on liability;

(d) Plaintiff had a right to challenge the award on liability;

(e) The Claim that there was need to have a final determination on the issue of

liability in the form of an award.

11. From the reasons stated above, it is clear that the Plaintiffs main ground is its

right to challenge/ set aside the decision of the Learned Arbitrator and in order to

do so the Plaintiff wants to compel the Arbitrator to issue an award for his

decision before the completion of the arbitration. Since this Court already

decided that the Plaintiff's right to challenge the Arbitrator's decision

remains intact after the final Award is published therefore the Plaintiffs

stated reasons above CANNOT support the claim that its appeal would be

rendered nugatory.
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12. As to the other reason that the Plaintiff is allegedly 'not in position to take any

steps in the assessment of damages without an award' is a red herring since this

issue was never raised by the Plaintiff with the Arbitrator before it filed this

proceeding in Court. Further, this Court already found that Plaintiff had in

fact agreed to proceed with assessment of damages after the learned

Arbitrator delivered his decision on the issue of liability.

C. Balance of Convenience does not favour the Plaintiff

13. The Plaintiff reasons for the balance of convenience test are largely similar to

those given for the nugatory test, i.e :

(a) Claim that the Plaintiff was deprived of its fundamental right for a reasoned

award;

(b) Claim that the Plaintiff would lose its right to challenge the award on liability;

(c) Claim that the Plaintiff would be unfairly denied of its right to defend its claim

or prosecute its counterclaim without a reasoned award;

(d) Claim that the Plaintiff would incur unnecessary costs and expenses;

14. As this Court would observe that the first 3 reasons are the same reasons given

earlier for the claim by the Plaintiff that its appeal would be rendered nugatory.

We have also dealt with these issues raised by the Plaintiff in the Defendant's

Written Submission as stated above". These reasons were also the same

reasons given by the Plaintiff in its Originating Summons (Enclosure 1) which

had been considered and rejected by this Court.

11 Defendant's Written Submission at para 41-50, pages 19-24

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15. In fact and notably on the issue of balance of convenience this Court found that

that it would cause injustice if the Defendant is restrained from proceeding

with the assessment of damages, a process which was already agreed to by

the Plaintiff before the Arbitrator. Further, this Court also found that it would not

be oppressive, vexatious or unconscionable to the Plaintiff if the arbitration

is proceeded with. Nothing has changed since these findings were made by this

Court on the Plaintiffs Originating Summons. With such finding of fact made by

this Court and considering is no change of circumstance since the findings were

made there would be no reason for this Court consider or to grant the Erinford

Injunction- see Mary Lim J ( now FCJ) in Pilecon Engineering Bhd v Malaysian

V Banking Bhd & Ors12 and Ramly Ali J ( later FCJ) in Kilang Kosfarm Sdn

Bhd v Kosma Nusantara Bhd13

16. As to the Plaintiffs claim that it would incur unnecessary costs and expenses for

the hearing of the assessment of damages, even if it is true (which is denied) this

cannot be a reason for the balance of convenience to tilt in favour of the Plaintiff.

Any costs or expenses incurred by the Plaintiff in proceeding with the arbitration

could be easily compensated in the event the Plaintiff was to succeed in its

appeal to the Court of Appeal. In such instance where damages are suitable and

adequate remedy, it is trite that an Erinford Injunction would not be granted by

the Courts14.

Pilecon Engineering Bhd V Malayan Banking & Ors [ 2012] 3 MU 100 at Tab 21 of DBOA (1) '
12

Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd [ 2002] 5 MU 662 at Tab 4 of DBOA (1)
14 Kilang Kosfarm Sdn Bhd v Kosma Nusantara Bhd [ 2002] 5 MU 662 at Tab 4 of DBOA(1)
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17. A further pertinent fact in this matter is the advanced age of the Learned

Arbitrator (Dato' Haji Azmel Bin Maamor) of between 77-78 years old and the

arbitration which has already taken more than 7 years for the determination of

the issue of liability alone. Any further delay to the arbitration would be

detrimental and prejudicial not only to the Defendant but also to the arbitration

as a whole. This coupled with the fact that the cause of action against the Plaintiff

in the arbitration arose from the events which took place between 2007 -2009

(some 13 years ago).

18. The Courts generally have been reluctant to grant any stay of proceedings or

Erinford Injunction against or to suspend hearings/trials which had been

prolonged but instead have insisted that civil suits should be proceeded with

without delay after considering the length of time already expended on the trial

and the time the cause of action arose several years earlier; see Court of Appeal

in Sanmaru Overseas Marketing v PT Indofood Interna Corgis and High

Court in AVP Hill & Mills ( 1‘11) Sdn Bhd v Aq Pacific Wide Sdn Bhd16;

19. In Jaks Island Circle Sdn Bhd v Star Media Group Bhd", the Court dismissed

an application for Erinford injunction to prevent the Defendant from proceeding

with assessment of damages because there was no special circumstance to

refuse the assessment of damages.

Sanmaru Overseas Marketing Sdn Bhd v PT Indofood Interna Corp (2009) 1 MU 502 at Tab 17 of DBOA (1)
15

AVP Hill & Mills (M) Sdn Bhd v Aq Pacific Wide Sdn Bhd [ 2003] 2 MU 324 at Tab 18 of DBOA (1)
16

17 Jaks Island Circle Sdn Bhd v Star Media Group[ 2010] 10 MU 386 at Tab 16 of DBOA(1)
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D. Claim that Plaintiff's point has not previously decided by the Appellate

Courts

20. The Plaintiffs submission that it had raised a point of law which had not been

decided by the Appellate Courts is specious.

21. While the Plaintiffs application is premised on its argument that it had a

fundamental right to a written award from the Arbitrator, but the Plaintiff could not

point to any specific provision in the law which provides the Plaintiff that so called

right.

22. Now the Plaintiff submits that its point of law has not been decided by any

Appellate Courts.

23. It is our respectful submission the Plaintiffs `so called point of law' is a novel point

of law and the lack of any decision by any Appellate Courts on the Plaintiffs 'point of

law' was due to the fact that the 'so called point of law' is not premised any

sound legal footing.

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24. Accordingly, we pray for the Plaintiffs application for an Erinford injunction be

dismissed with costs.

Dated 14th December 2020.

for the Defendant

This DEFENDANT'S REPLY SUBMISSION was prepared and filed by Messrs S

Murthi & Associates, Advocates & Solicitors, for and on behalf of the Defendant whose
address of service is at Lot BM-05, Mezzanine Floor, PJ Industrial Park, No. 13, Jalan
Kemajuan, 46200 Petaling Jaya, Selangor Darul Ehsan.
[Tel: 03-79575780] [Faks: 03-79575784] [emel: office@murthilaw.com]
[Ref: SM 20892/L/TM-H/CT]