Wednesday 27 Sep 2023
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KUALA LUMPUR (Jan 11): Bursa Malaysia Securities Bhd's application to compel Serba Dinamik Holdings Bhd to disclose the factual findings update (FFU) of its special independent review will be decided on Jan 27.

The High Court will on the same day decide whether to allow Serba Dinamik's application to expunge parts of Bursa's affidavit, which relate to the FFU.

Judicial commissioner Wan Muhammad Amin Wan Yahya fixed the date after the conclusion of submissions from both sides on Tuesday (Jan 11).

It is understood that Serba Dinamik's lawyers had replied to Bursa's counsel Datuk Loh Siew Cheang's submission on the issue, and Loh also replied on the issues raised by the company.

It is also learnt that counsel Chris Leong, who held a watching brief for the Securities Commission Malaysia (SC), also submitted during the proceedings.

The proceedings in chambers were conducted over video with no access to the media.

Last November, Bursa filed an originating summons to compel Serba Dinamik to disclose the FFU of the special independent review dated Sept 30, 2021 conducted by Ernst & Young Consulting Sdn Bhd (EY Consulting).

The legal action was taken due to Serba Dinamik's "failure to comply" with the stock exchange's directive on Oct 22 for the disclosure.

Serba Dinamik's lawyers, Mak Lin Kum and Mohamed Izzul Faris Mohd Ghani, on Tuesday argued that from the affidavits that it filed, the company has not committed any breach of the relevant requirements under the Main Market Listing Requirements (MMLR).

The oil and gas engineering company also asserted that there is no reason for the court to exercise its discretion to make any declaration to compel the company to reveal the findings.

"There is no evidential support for the letter of Oct 22, last year, by itself being the foundation of a purported breach of the MMLR. Further, the orders sought by Bursa are also in excess of Bursa's powers," Serba Dinamik's lawyers said in written submissions sighted by The Edge.

"What is most conspicuous is that EY Consulting is not a party to these proceedings and EY Consulting has not given consent to the publication of the FFU. Since EY Consulting is not willing to swear to the truth of the FFU and that EY Consulting is unwilling to undertake compliance with the MMLR, there is basis upon which for the court to consider whether the FFU will meet the requirements of paragraphs 9.03 and 9.35A of the MMLR," they added.

Serba Dinamik's lawyers further claimed that Bursa did not come to court with clean hands and its powers are contractual, and that it is not the function of the court to rewrite the MMLR or to add to any power that does not exist.

Bursa says FFU is not hearsay evidence

Bursa previously submitted that the FFU is not a hearsay document as claimed by Serba Dinamik.

Loh, the exchange operator's lawyer, said the company had tried to stop the disclosure of the FFU on its special independent review partly because it referred to documents seized by the SC during its raid on the company.

He also disputed the assertion that the FFU is unverified and therefore cannot be disclosable material information, saying the defendant is "engaging in a game of words".

"As a matter of fact, the damning documents in the FFU in the form of exhibits/appendices are the defendant's documents seized by the SC during a raid that lasted three days and the special independent review refers to those documents.

"In substance, it is these documents that Serba Dinamik wants to keep as a mystery and secret," Loh asserted.

Serba Dinamik has also filed suit against Bursa Securities to nullify the special independent review, arguing that the directives by the stock exchange to appoint EY Consulting to undertake the review was in excess of its power, among others.

The issue with Serba Dinamik first came up when its external auditor KPMG raised certain issues involving its financials for the 12 months ended Dec 31, 2020. The matter snowballed into a litigation by the company against the auditor, prompting regulators to step in, including a raid by the SC on the company's office.

On Monday, Bursa said trading of Serba Dinamik's shares would remain suspended until further notice, although the company already issued its outstanding annual report for the 18 months ended June 30, 2021, on Jan 6.

This was because the company had not complied with its directive to make an announcement on the findings from the FFU, said Bursa.

Edited ByS Kanagaraju
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