COURSE

UUUK 4053 CIVIL PROCEDURE II

SEMESTER II SESI 2022/2023

ASSIGNMENT:
LEGAL OPINION ASSIGNMENT

PREPARED FOR:

DR. HANIWARDA YAAKOB

DR. ASYRAF AZNI

ENCIK JASON CHEONG KAK LOK

PREPARED BY:
NUR AMIRA BATRISYIA BINTI MOHAMAD RAFI (A174439)

FIRMA
TETUAN FARIDAH SHAHNAZ (FIRMA 3)
 CONTENT

NO. CONTENT PAGE

1.0 Legal Opinion Writing (Question 1)

3

2.0 Legal Opinion Writing (Answer 1) 4

3.0 Legal Opinion Writing (Question 2)

11

4.0 Legal Opinion Writing (Answer 2) 12

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 Legal Opinion Writing (Question 1)

1. Client: Mr. Smith

Dear legal assistants, We have a new client, Mr. Smith who is the Chairman of a company
called Smith Sdn. Bhd. He has just found out that the Director of the company, Mr. John,
has committed breach of trust of RM100 million. John has used some of the money to buy
properties in Singapore and London. Our client has requested our legal opinion on the
way, procedure and chances of getting the RM100 million back including the money that
John has spent to buy the properties overseas. Please advise our client accordingly.

Thank you.

Regards,

Senior partner

(15 marks)

3
Legal Opinion Writing (Answer 1)
Partners:

TETUAN FARIDAH SHAHNAZ H'NG ZONG XIAN

LLB Hons, UKM
NUR AMIRA BATRISYIA BINTI MOHAMAD RAFI
Advocates & Solicitors | Peguambela & Peguamcara LLB Hons, UKM
NUR BATRISYIA HANNANI BINTI ABD.RAHMAN
LLB Hons, UKM
ANIS QISTINA BINTI ABDUL MALEK
Bilik Latihan Guaman, Fakulti Undang-undang LLB Hons, UKM
ELAVARASI A/P MANOKARAN
Universiti Kebangsaan Malaysia LLB Hons, UKM
43600 UKM Bangi
Selangor Darul Ehsan.
Tel: +603-8921 6354/6355
Email: firm3.fuu@gmail.com | Mon-Fri 8.30 am – 5.30 pm

Our Ref: F3/LO/001/2023 [ ] By Post [ ] By Hand

Your ref: Please advise. [ ] By A.R. Registered [ ] By Registered Post
[ ] By Fax [ ] By Courier
Date: 06/06/2023 [ / ] By Email [ ] By Post Express

MR. SMITH
CHAIRMAN OF SMITH SDN BHD

No. 25 (2nd Floor), Greeland

Avenue, Jalan Bangi 2/3, Bandar
Baru Bangi,43650 Selangor Darul
Ehsan.

Dear Sirs/ Madam

LEGAL OPINION FOR MR. SMITH PERTAINING TO BREACH OF TRUST CASE BY MR. JOHN,
DIRECTOR OF SMITH SDN. BHD.

As per our last meeting on 23/05/2023 and request in your letter of instruction, hereby is our legal
opinion issued on issues below:

a) Whether Mr. Smith can take legal action against Mr. John;

b) Whether Mr. John can be sued for breach of trust and have a chance of getting back the
RM100 million;
c) What are the procedures needed to initiate the action in court.
d) Whether there is any action that can be taken to prevent Mr. John from taking any further
action on the properties bought by him and the balance money within his possession.

4
FACTS OF THE CASE

2. Before we give our legal opinion on the matters stated above, allow us to briefly summarised
what we understood from the facts of your case below:

2.1. You are the Chairman of a company called Smith Sdn. Bhd. while Mr. John is the Director
of the same company.

2.2. Recently, you found out that Mr. John had committed breach of trust amounting to RM100
million. Some of the money had been used to buy properties in Singapore and London.

2.3. Now, you intend to initiate legal action against Mr. John and would like to seek for legal
opinion on certain issues stated above.

LEGAL OPINION

3. Based on our understanding of the facts above in regards to your case, stated below is our legal
opinion pertaining to the matters being brought forward to us by your side. It is to be noted that
all the opinions given herein are based on all the relevant facts and information as per disclosed
by your side to us. However, our opinion may be different in the case where there is more
information thatis being disclosed or gained by in the future especially for information that involved
the Plaintiff side.

First Issue: Whether Mr. Smith can take legal action against Mr. John;

3.1. Basically, there are five preliminary matters that need to be observed before a party can
initiate a civil action in court which are the parties to the suit, the cause of action, the
limitation period, the locus standi and finally the remedies that can be sought.

3.2. From the facts of this case, it can be observed that there is party suing and parties to be
sued. The most suitable party to be the plaintiff in this situation would be Smith Sdn. Bhd.
a company has a separate legal entity which can sue another party while the defendant
would be Mr. John in his personal capacity as the director of the company.

3.3. As for the cause of action, since the civil suit intended against Mr. John is breach of trust,

5
 it is important for the elements of breach of trust to be fulfilled before commencing the suit.
As to whether the elements had been fulfilled will be discussed in the next issue.

3.4. Locus standi is a principal that must be prove by the claimant in a proceeding to enable
them having the right to make the claim against the other party. In the case of Government
of Malaysia v Lim Kit Siang [1988] 1 CLJ Rep 63 the court held that for a claimant to
have locus standi in a case, the claimant needs to show that he has a real and genuine
interest in the matter. Section 20(a) of the Companies Act 2016 shall also be observed.
Under this provision, a company incorporated under the Companies Act will have a
separate legal entity from its members. In addition to this, based on the established legal
principle in the case Foss v Harbottle (1843) 2 Hare 461, the effect of having a separate
legal entity is that the company will have the ability to sue and to be sued. The decision of
Foss v Harbottle (1843) 2 Hare 461 was upheld in the Federal Court case of Lee Tak Suan
& Anor v Tunku Dato Seri Shahabudin bin Tunku Besar Burhanuddin & Ors [2009] 4
MLJ 759.

3.5. Applying the principle in of Government of Malaysia v Lim Kit Siang [1988] 1 CLJ Rep
63 to the current case, despite being the Chairman of the company, you do not have the
real and genuine interest towards the matter before hand since you are not adversely
affected by the Mr. John breach of trust. However, relying on Section 20(a) of the
Companies Act 2016 and the case of Foss v Harbottle (1843) 2 Hare 461, the most
suitable party having the capacity to initiate the proceeding will be Smith Sdn. Bhd. as the
company is the affected party in this case and have the legal capacity to sue Mr. John

3.6. In regards to the limitation period, based on Section 6 of the Malaysia Limitation Period
Act, the limitation period to initiate this civil action would be within six years after the cause
of action had accrued.

3.7. Based on the facts inferred above, there is no specific date as to when the cause of action
on breach of trust had occurred, therefore you need to be sure as to when it started
happened to make sure that it is not time-barred based on the statute.

3.8. Finally, for the remedies of civil breach of trust, the most common remedy that can be
sought is damages whereby Smith Sdn Bhd can demand to recover back the total amount
of money that has been misappropriated by Mr. John for personal use which based on the
facts of the case amounts to RM 100 million.

3.9. In the event the defendant defaulted in returning the sum of money in full, the Court by
virtue of Order 45 Rule 3 ROC 2012 may order for giving of possession of the house bought

6
 by Mr. John using the money provided that a claim for possession of immovable property
has first been made.

3.10.In short, for this issue, legal action can be initiated against Mr. John if all the preliminary
matters have been fulfilled provided that the legal suit is being initiated in the name of Smith
Sdn. Bhd.

Second Issue: Whether Mr. John can be sued for breach of trust and have a chance of
getting back the RM100 million.

3.11.Basically, breach of trust occurs whenever a person is entrusted with a certain duty and
subsequently the duty is being breached. Under civil law, breach of trust occurs when a
person breaches their duty which is imposed by a trust instrument like will, statute, or by
common law.

3.12.Section 213 of the Companies Act 2016 imposes statutory duty on company directors to
exercise reasonable care, skill, and diligence and at all times act in the best interest of the
company. Any director found contravening this provision may be liable up to 5-years
imprisonment or up to RM 3 million fine.

3.13. In the case of Board of Trustees of the Sabah Foundation & 2 Ors v Datuk Syed
Kechik bin Syed Mohamed & Anor [2008] 5 MLJ 469, it was explained clearly in the case
stipulating the director’s fiduciary duty is to act in good faith and must not act for his own
benefit.

3.14. Based on the provision and the case referred above, it can be said that Mr. John had been
entrusted with a statutory duty as the director of Smith Sdn. Bhd. However, when he
misappropriated RM 100 million of the company’s money and used some of it for his
personal gain which is to buy properties in Singapore and London, he is clearly in breach
of trust entrusted on him as the director of the company.

3.15. Therefore, in this issue, the respond to it is in affirmative and Smith Sdn. Bhd. have a
chance of claiming back the amount of money amounting to RM 100 million taken by Mr.
John.

Third Issue: What are the procedures needed to initiate the action in court;

3.16. Order 5 Rule 2 of the Rules of Courts 2012 (ROC 2012) provides that if it is likely for
substantial dispute to arise in proceedings, then the mode of commencement of
7
 proceedings should be by way of writ.

3.17. It is foreseeable that from the facts of the case, there will be substantial dispute to arise in
the proceedings before us as on top of the intention of suing Mr. John, you are also
intending to demand for the restitution of the RM 100 million from Mr. John. Therefore, the
most suitable mode of commencement would be in the form of a writ to the court.

3.18. By virtue of Order 18 of the ROC 2012, after the writ is being served on the opposite party,
both parties will continue to proceed with their submission of pleadings respectively in
accordance with Order 18 starting with serving the statement of claim by the plaintiff on the
defendant.

3.19. Next, the relevant facts from the bundle of pleadings will be summarized before proceeding
to the Pre-Trial Case Management (PTCM) Stage under Order 34 of the ROC 2012.
Subsequently, if there is no further contention or negotiation made between the parties, the
Court will then proceed with the full trial of the case in accordance with Order 35 ROC
2012. The court will consider all the merits from both sides before the outcome of the case
is decided to give the best remedy to the parties entitled to it.

3.20. Based on the above provisions stated, you will need to comply with all the procedures
stated above before a judgement by the Court can be passed to solve the all the disputed
issues.

Fourth Issue: Whether there is any action that can be taken to prevent Mr. John from taking
any further action on the properties bought by him and the balance of money within his
possession.

3.21. For us to be able to recover the amount of money involved in this case as well as the
properties bought by Mr. John, it is important to ensure that both of it are still within his
possession and not being disposed of to other third party.

3.22. An injunction application ex-parte under Order 29 ROC 2012 can be made to the Court
together with affidavit in support for the court to be able to make an order for detention,
custody or preservation of any subject matter which is the subject matter of the cause. In
filing an ex-parte application under this order, it is important to show that there is urgency
in getting the injunction order for that matter or else it would defeat the purpose of the action
and cause irreparable harm to plaintiff.

3.23.In giving injunction, it is pertinent for the court to apply the test used in the case of American
Cyanamid Co. v Ethicon Ltd [1975] 1 All ER 504 before granting an injunction order
which the principle had been accepted by the Malaysian courts. In this case it was held by
8
 the court that in assessing whether injunction should or should not be granted, the court
must ensure that there is a serious issue to be tried; balance of convenience and damages
is not an adequate remedy in the case. In recent development, the court also consider the
capability of plaintiff to undertake the damages against the defendant should the decision
be against him in the case of Yukilon Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek
Meng & Ors [1998] 7 MLJ 551.

3.24. By virtue of Order 29 ROC 2012, Smith Sdn Bhd, may make this injunction application to
prevent the defendant from making any transaction on the properties he is currently
possessing, which is the money. We are of the view that if this application is not made,
there is a . Relying on the principles of American Cyanamid Co. v Ethicon Ltd [1975] 1
All ER 504, we opine that the circumstances of our case will fulfil all the principles laid down
as it involves a high amount of money in our case. In addition, if the decision for the
injunction order is against Smith Sdn Bhd, we are very sure that the company is capable to
undertake the damages cause to the defendant as per the principle in Yukilon
Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek Meng & Ors [1998] 7 MLJ 551.

3.25. Next, we are aware that some of the money had been used to purchase properties abroad
by Mr. John. Therefore, it is important for the company to get the property in the event the
defendant defaulted to pay the full amount of RM 10 million to the company.

3.26.Therefore, we are of the view that an application for Mareva Injunction should be filed to
the Court to freeze the asset of the defendant pending disposal of the case.

3.27.In the case of Ang Chee Huat v Englebach Thomas Joseph [1995] 2 MLJ 83, the court
stated that the there are three requirements that need to be fulfilled which are the party must
have good and arguable case; the assets contended must still be in jurisdiction; and there is
a risk of dissipation of assets.

3.28. Based on the above case, all the requirements are already being fulfilled by the
circumstances of the case before us, except for the part that the assets concerned are in
the jurisdiction. However, in the Malaysian Court case, Metrowangsa Asset Management
Sdn Bhd v Ahmad B Hj Hassan [2005] 1 MLJ 654, it was held by the High Court that a
Worldwide Mareva Injunction can be issued by the Court especially when the assets of the
defendant were abroad. Therefore, the principle laid down in the above case regarding
Worldwide Mareva Injunction may be applicable in our case today in order to freeze
defendant’s asset in Singapore and London.

9
 CONCLUSION

4. In short, it is our humble opinion that you have a strong case. We hope that our legal opinion
stated above somehow helps you in understanding the issues that we are currently dealing with
in this case. At the same time, we also hope that it helps to give a glimpse of the possible outcome
of or case. However, as we had stated earlier, our opinion might be different in the case where
there is more information that is being disclosed or gained in the future especially for information
that involving the Plaintiff side. Further, all the outcomes are still subjected to the independent
view of the Court in deciding the case. Lastly please do not hesitate to reach out if you have any
enquiries. You may also kindly call our office to fix an appointment for any further discussion with
regards to this matter.

Thank you.

Your sincerely,

Nur Amira Batrisyia

Legal Assistant,
TETUAN FARIDAH SHAHNAZ

10
 Legal Opinion Writing (Question 2)

2. Client: Puan Rosnah

Dear legal assistant, Please prepare a legal opinion for our client, Pn. Rosnah on the
following issue. Puan Rosnah is the author a novel entitled “30 hari membenci mu”. She
has hired an agent, En. Azman to help her print and publish the said novel. Unfortunately,
Saiful has plagiarised and republished parts of the novel as his own work. Pn. Rosnah
wishes to know if there is any legal action that can be taken against Azman and the
procedure involved. Please advise our client accordingly.

Thank you.

Regards,
Senior partner

(15 marks)

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Legal Opinion Writing (Answer 2)
Partners:

TETUAN FARIDAH SHAHNAZ H'NG ZONG XIAN

LLB Hons, UKM
NUR AMIRA BATRISYIA BINTI MOHAMAD RAFI
Advocates & Solicitors | Peguambela & Peguamcara LLB Hons, UKM
NUR BATRISYIA HANNANI BINTI ABD.RAHMAN
LLB Hons, UKM
ANIS QISTINA BINTI ABDUL MALEK
Bilik Latihan Guaman, Fakulti Undang-undang LLB Hons, UKM
ELAVARASI A/P MANOKARAN
Universiti Kebangsaan Malaysia LLB Hons, UKM
43600 UKM Bangi
Selangor Darul Ehsan.
Tel: +603-8921 6354/6355
Email: firm3.fuu@gmail.com | Mon-Fri 8.30 am – 5.30 pm

Our Ref: F3/LO/002/2023 [ ] By Post [ ] By Hand

Your ref: Please advise. [ ] By A.R. Registered [ ] By Registered Post
[ ] By Fax [ ] By Courier
Date: 06/06/2023 [ / ] By Email [ ] By Post Express

PUAN ROSNAH HJ. RASHID

1st Floor, Menara Karangkraf,
Jalan Karangkraf 3, Shah Alam
42000 Selangor Darul Ehsan.

Dear Sirs/ Madam

LEGAL OPINION FOR PUAN ROSNAH PERTAINING TO ISSUE OF PLAGIARISM AND
REPUBLISHING OF NOVEL

As per our last meeting on 01/06/2023 and request in your letter of instruction, hereby is our legal
opinion issued on issues below:

a) Whether you can take legal action against En Azman for copyright infringement;

b) What are the procedures needed to initiate the action in court against En Azman;
c) Whether there is any action that can be taken to stop En Azman from continuing his action
plagiarising and republishing parts of the novel.

FACTS OF THE CASE

2. Before we give our legal opinion on the matters stated above, allow us to briefly summarise

12
 we understood from the facts of your case below:

2.1. You are the author of a novel entitled “30 hari membenci mu”.

2.2. You had hired an agent, En. Azman to help you print and publish the said novel.

2.3. Unfortunately, you found out that En. Azman had plagiarised and republished parts of the
novel as his own work.

2.4. Now, you intend to know whether any legal action can be initiated against En. Azman and
would like to seek for legal opinion on certain issues stated above.

LEGAL OPINION

3. Based on our understanding of the facts above in regards to your case, stated below is our legal
opinion pertaining to the matters being brought forward to us by your side. It is to be noted that
all the opinions given herein are based on all the relevant facts and information as per disclosed
by your side to us. However, our opinion may be different in the case where there is more
information thatis being disclosed or gained in the future especially for information that involved
the Plaintiff side.

First Issue: Whether you can take legal action against En Azman for copyright
infringement.

3.1. Basically, there are five preliminary matters that need to be observed before a party can
initiate a civil action in court which are the parties to the suit, the cause of action, the
limitation period, the locus standi and finally the remedies that can be sought.

3.2. From the facts of this case, it can be observed that there is party suing and parties to be
sued. In the legal suit, you will act as the plaintiff while En Azman will be acting as the
defendant.

3.3. As for the cause of action, since the civil suit intended against En Azman is infringement of
copyright, it is important for the elements of such infringement to be fulfilled before
commencing the suit. As to whether the elements had been fulfilled will be discussed in the
next issue.

3.4. Locus standi is a principle that must be proved by the claimant in a proceeding to enable
them to have the right to make the claim against the other party. In the case of Government
of Malaysia v Lim Kit Siang [1988] 1 CLJ Rep 63 the court held that for a claimant to
13
 have locus standi in a case, the claimant needs to show that he has a real and genuine
interest in the matter.

3.5. Applying the principle in of Government of Malaysia v Lim Kit Siang [1988] 1 CLJ Rep
63 to the current case, you as the author of the novel do have the real and genuine interest
towards the matter and therefore you have the locus standi to initiate the case.

3.6. For limitation period, based on Section 6 of the Malaysia Limitation Period Act, the limitation
period to initiate this civil action would be within six years after the cause of action had
accrued.

3.7. Based on the facts inferred above, there is no specific date as to when the En Azman began
to do copyright infringement against you, therefore it is best for you to check and be sure
as to when it started happening to make sure that it is not time-barred based on the statute.

3.8. Finally, for the remedies for copyright infringement, it can be seen that there are series of
remedies available for plaintiff as provided under Section 37 of the Copyright Act 1987
including but not limited damages, order for injunction as well other orders that the court
deems to be fit.

3.9. In short, regarding this issue, you can initiate legal action against En Azman if all the
preliminary matters have been fulfilled.

3.10.Basically, there are two main elements that needed to be proven in a copyright infringement
suit. Firstly, you need to prove that you owned the copyright and second the defendant had
infringed the copyright.

3.11.Section 3 of the Copyright Act 1987 defines ‘literary work’ inclusive of novels, stories,
books, pamphlets, manuscripts, poetical works and other writings. By virtue of Section 7
of the Copyright Act 1987, all literary works shall be eligible for copyright protection.

3.12.Section 10(2)(a) specified that copyright shall be subsisted in every work eligible for
copyright and if it is a literary is being first published in Malaysia. In addition, Section 26 of
the Act stipulates that the copyright conferred in Section 10 shall be vested with the author
initially.

3.13.Based on Section 3 of the Copyright Act 1987 stated above, it is confirmed that the novel
entitled “30 hari membenci mu” falls within the definition of literary work and therefore is
entitled to copyright protection under Section 7 of the Act.

3.14.By virtue of Section 10(2)(a) and Section 26 of the similar Act, the copyright shall be owned
by you as the author of the novel entitled “30 hari membenci mu”. Therefore, the first

14
 element of copyright infringement had been established.

3.15.Section 36(1) provides that infringement of copyright happens when any person without
licence from the owner of the copyright does or causes someone to do an act that is
controlled by copyright under the same Act.

3.16.In the landmark case of Fauzilah Salleh v Universiti Malaysia Terengganu [2012] 4 CLJ
601, the court had acknowledged that plagiarism involves taking any thoughts, writings,
inventions, or any creative works that had been done by an individual, and act that as their
own.

3.17.Section 37 of the Copyright Act 1987 allows the owner of the copyright to initiate a suit
for such infringement and all relief including injunction shall be made available to plaintiff.

3.18.Based on the facts of the case given to us, En Azman was only permitted by your side to
print and publish the said novel. Therefore, when he acted to plagiarise and republished
parts of the novel as his own, he is clearly acting against Section 36(1) of the Copyright
Act. It can also be seen that there is resemblance between the case beforehand and case
of Fauzilah Salleh v Universiti Malaysia Terengganu [2012] 4 CLJ 601 as both of these
cases involved plagiarism of other people’s creative work.

3.19.Since the two elements of copyright infringement has been established above, by virtue of
Section 37 of the Copyright Act 1987 you have the right to initiate the legal suit against En
Azman and at the same time apply for suitable relief that suits your situation.

Second Issue: What are the procedures needed to initiate the action in court against En
Azman.

3.20.Order 5 Rule 2 of the Rules of Courts 2012 (ROC 2012) provides that if it is likely for
substantial dispute to arise in proceedings, then the mode of commencement of
proceedings should be by way of writ.

3.21. It is foreseeable that from the facts of the case, there will be substantial dispute of fact to
arise in the proceedings before us as it involves issues of infringement of copyright and
therefore a lot of substantial facts will be involved and possibly be disputed . Therefore, the
most suitable mode of commencement would be in the form of a writ to the court.

3.22. By virtue of Order 18 of the ROC 2012, after the writ is being served on the opposite party,
both parties will continue to proceed with their submission of pleadings respectively in
accordance with Order 18 starting with serving the statement of claim by the plaintiff on the
defendant.

15
3.23. Next, the relevant facts from the bundle of pleadings will be summarized before proceeding
to the Pre-Trial Case Management (PTCM) Stage under Order 34 of the ROC 2012.
Subsequently, if there is no further contention or negotiation made between the parties, the
Court will then proceed with the full trial of the case in accordance with Order 35 ROC
2012. The court will consider all the merits from both sides before the outcome of the case
is decided to give the best remedy to the parties entitled to it.

3.24. Based on the above provisions stated, you will need to comply with all the procedures
stated above before a judgement by the Court can be passed to solve the all the disputed
issues.

Third Issue: Whether there is any action that can be taken to stop En Azman from
continuing his action plagiarising and republishing parts of the novel.

3.25.It is in our view that it is important to stop En Azman from further having any documents or
materials related to the novel “30 hari membenci mu” to prevent him from continuing his
action of plagiarising and republishing parts of the novel.

3.26. An injunction application ex-parte under Order 29 ROC 2012 can be made to the Court
together with affidavit in support for the court to be able to make an order for detention,
custody or preservation of any subject matter which is the subject matter of the cause. In
filing an ex-parte application under this order, it is important to show that there is urgency
in getting the injunction order for that matter or else it would defeat the purpose of the action
and cause irreparable harm to plaintiff.

3.27.In giving injunction, it is pertinent for the court to apply the test used in the case of American
Cyanamid Co. v Ethicon Ltd [1975] 1 All ER 504 before granting an injunction order
which the principle had been accepted by the Malaysian courts. In this case it was held by
the court that in assessing whether injunction should or should not be granted, the court
must ensure that there is a serious issue to be tried; balance of convenience and damages
is not an adequate remedy in the case. In recent development, the court also consider the
capability of plaintiff to undertake the damages against the defendant should the decision
be against him in the case of Yukilon Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek
Meng & Ors [1998] 7 MLJ 551.

3.28. We are of the view that the most suitable injunction to be sought by you in regards to this
case is Anton Piller Order. This order requires defendant to allow the plaintiff to enter the
premise that belongs to defendant in order to examine, duplicate or keep any documents
or other items for the purpose of raising a legal action against the defendant. This order
originated from the case of Anton Piller Kg v Manufacturing Processes Ltd. and Others
16
 [1975 A. No. 6292] [1976] Ch. 55. which was later accepted in Malaysian law in the case
of Arthur Anderson & co v Interfood Sdn Bhd [2005] 6 MLJ 239.

3.29.Under the Malaysian case, there were few requirements laid down in making the claim for
Anton Piller Order a successful one, which are:

(i) Full and frank disclosure about all the relevant information to justify the
issuance of the order;
(ii) The order must be drawn that it extends no further that the minimum necessary
to preserve the evidence;
(iii) It must includes alternative prayers for the defendant to deliver the documents
first, if the defendant had failed, then the Anton Piller order will come into effect;
(iv) Contains clear and specific undertakings that the order will be served by a
solicitor who will supply a copy of the order to the defendant, explain the terms
and advise the defendant to seek immediate legal advice in a reasonable time.
(v) Contains clear and specific undertaking as to damages by the plaintiff towards
the defendant;
(vi) The name of a separate solicitor to supervise the execution of the order.

3.30.By virtue of Order 29 ROC 2012, you may make this injunction application specifically on
Anton Piller Order to prevent the defendant from continuing to plagiarize and republish part
of the novel as his own work. By having this order from court, you will be able to go En
Azman’s premise in order to examine, duplicate or keep any documents or other items for
the purpose of legal proceedings against him. Relying on the principles of American
Cyanamid Co. v Ethicon Ltd [1975] 1 All ER 504, we opine that the circumstances of our
case will fulfil all the principles laid down as it involves serious issues to be tried, more
convenient would be gain by granting the order to plaintiff as compared to the
inconvenience caused to defendant and finally damages would not be an adequate remedy
to indemnify the plaintiff. We also are of the view that if the injunction is not granted, it will
cause irreparable injury and defeating the purpose of this action as the evidence can be
disposed and will cause the purpose of this action be rendered useless.

3.31.Plus, if the decision for the injunction order is against you, we are very sure that you are
still capable to undertake the damages cause to the defendant as per the principle in
Yukilon Manufacturing Sdn Bhd & Anor v Dato’ Wong Gek Meng & Ors [1998] 7 MLJ
551 since defendant is an individual party to the suit and the damages caused would not
be so high in the event of default of the claim.

17
 3.32.Relying on the authority in the Malaysian case of Arthur Anderson & co v Interfood Sdn
Bhd [2005] 6 MLJ 239 which referred to the principle established under the case of Anton
Piller Kg v Manufacturing Processes Ltd. and Others [1975 A. No. 6292] [1976] Ch.
55, we are aware that all the requirements provided must first be complied before you can
get the order from the court.

3.33.As a firm who are already familiar with the application of this order and succeeded few
times before, we ensure you that we will help the best that we can in making sure that you
comply with all requirements provided so that you will have high chances of getting the
Anton Piller Order against the defendant.

CONCLUSION

4. In short, it is our humble opinion that you have a strong case. We hope that our legal opinion
stated above somehow helps you in understanding the issues that we are currently dealing with
in this case. At the same time, we also hope that it helps to give a glimpse of the possible outcome
of or case. However, as we had stated earlier, our opinion might be different in the case where
there is more information that is being disclosed or gained in the future especially for information
that involving the Plaintiff side. Further, all the outcomes are still subjected to the independent
view of the Court in deciding the case. Lastly please do not hesitate to reach out if you have any
enquiries. You may also kindly call our office to fix an appointment for any further discussion with
regards to this matter.

Thank you.

Your sincerely,

Nur Amira Batrisyia

Legal Assistant,
TETUAN FARIDAH SHAHNAZ

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