KUALA LUMPUR (Dec 21) : Serba Dinamik Holdings Bhd has sought to expunge a document by Ernst & Young Consulting Sdn Bhd (EY Consulting) called “Factual Findings Update”, that had been included in Bursa Malaysia Securities Bhd's affidavit in support of the regulatory body's originating summons at the High Court to compel the company to make public of the independent review done.
In Serba Dinamik's application filed on Dec 14, its managing director and chief executive officer Datuk Dr Mohd Abdul Karim Abdullah also affirmed an affidavit in support of the company's application, in which he claimed that the Factual Finding Update is “documentary hearsay evidence”.
Karim said a letter dated Oct 29 from EY Consulting to Serba Dinamik had confirmed that the Factual findings update was subject to verification and collaborativeness.
“EY Consulting made no representation to the accuracy and completeness of the information contained in the Factual Findings Update.
“There is an ongoing proceeding between the parties herein vide at another KL High Court where, Serba Dinamik herein is seeking, inter alia, to restrain Bursa and EY Consulting herein from compelling it from announcing the Factual Findings Update,” he said.
Karim alleged that the filing of the Factual Findings Update in Bursa's affidavit, which was affirmed by its chief regulatory officer Julian Mahmud Hashim, amounted to an interference of Serba Dinamik's action in the other suit that involves Bursa and EY Consulting.
“The inclusion of Factual Findings Update as an exhibit is oppressive towards Serba Dinamik,” Karim alleged in his affidavit in support of the application sighted by theedgemarkets.com on Tuesday (Dec 21).
Matter pending in another court
Earlier, Serba Dinamik chairman and director Datuk Seri Mohamed Farid Abu Hassan, in an affidavit in support of the company's application to redact the “Factual Findings update” in Bursa's affidavit, said EY Consulting had undertaken not to distribute any interim updates or other material pending to the completion of their report.
Farid said in an earlier application dated Nov 26 that EY Consulting had created the document and distributed it to Bursa and the Securities Commission Malaysia despite the terms contained in their letter of engagement dated July 2 this year.
“EY Consulting had also not given consent for the announcement of contents of that “Factual Findings Update”, and had verified that their “Factual Findings Update” is subject to clarification,” Farid said in the affidavit, highlighting the company's action in the other court as stated earlier.
Furthermore, the Serba Dinamik director said it had given notice to Bursa that they are not to take steps which will destroy the subject matter of the other suit filed by the company against Bursa and EY Consulting at the other court.
“As the two suits (filed by Serba Dinamik) is a live matter, hence an immediate redaction of the following enclosures (the Factual Findings Update” and other paragraphs) is warranted,” Farid said.
Farid, as reported on Monday (Dec 20), had subsequently stepped down from his post, citing “biased regulatory prosecution aimed towards Serba Dinamik” as the reason behind his resignation.
A case management of the matter was held on Monday before High Court deputy registrar, Mahmoodah V M Abdul Latiff.
A hearing date has been fixed to hear Serba Dinamik's application before High Court judicial commissioner Wan Muhammad Amin Wan Yahya on Jan 3, 2022.
Bursa Malaysia's court action, filed by Messrs Chooi & Company + Cheang & Ariff last month, was to seek a court order to compel Serba Dinamik to make a public announcement of the Special Independent Review (SIR) findings.
In Bursa's application, it is seeking a declaration that Serba Dinamik had contravened or breached and is in continuing contravention and breach of its obligations under the Main Market Listing Requirements (MMLR), when it refused or failed to comply with Bursa's instructions on Oct 22.
It also sought to compel Serba Dinamik to disclose EY Consulting's SIR and KPMG's findings.
It also sought a court order directing Serba Dinamik to complete the SIR with EY Consulting or in the event of EY Consulting's premature resignation or its termination, the court orders the company to appoint an independent reviewer with international affiliation within 14 market days for the SIR to be completed.
In Serba Dinamik's action at the other court, it sought to nullify the appointment of EY Consulting under Bursa’s directive to conduct the SIR.
The oil and gas engineering services company also sought interim injunctive relief against Bursa to restrain the stock exchange from releasing the update pending the disposal of the suit. It also filed a similar action against EY Consulting.
Serba Dinamik has been under regulatory and public scrutiny amid several issues raised by its then external auditor KPMG involving its accounts for the 12-month period ended Dec 31, 2020.
It had also sought to recuse the judge hearing Serba Dinamik's suit against Bursa and EY Consulting earlier this month, but failed.