Peter David Jack Hutchison v Jonathan Tai Sin Cheong (WA-22NCvC-204-03/2024)

PETER DAVID JACK HUTCHISON (Ireland Passport No.: PG3909914)

SARAH PATRICIA HUTCHISON (Ireland Passport No.: PH2154318)

OLIVER PETER HUTCHISON (Ireland Passport No.:PU4135495) [Claiming through his father and his litigation representatives, PETER DAVID JACK HUTCHISON]

NICHOLAS ARTHUR HUTCHISON (Ireland Passport No.: PV7355776) [Claiming through his father and his litigation representatives, PETER DAVID JACK HUTCHISON]

TIMOTHY JUSTYN HUTCHISON (Ireland Passport No.: PW4331462) [Claiming through his father and his litigation representatives, PETER DAVID JACK HUTCHISON] ...PLAINTIFFS

JONATHAN TAI SIN CHEONG (NRIC No.: 811118-14-5379)

TESSA JORDANA TAI UEN YI (NRIC No.: 860222-14-5310)

PROJECT TWO NINE SDN BHD [Company No.: 202001002694 (1359013-U)]

NG HONG OON (NRIC No.: 600108-10-6587) [Trading under the name and style of Voon Seng Renovation (Business Registration No.: 202403083886 (SA0610690-V)]

HOI JUNG WAI (NRIC No.:820723-08-5057) [Trading under the name and style of JW Hoi Architect (Business Registration No.:202103080565) (003249459-T)]

LEONG TONG POH ...DEFENDANTS GROUNDS OF JUDGMENT [Enclosure 114] Preliminary [1] By way of Enclosure 114, the sixth defendant seeks security for costs from the plaintiffs under Order 23 rule 1 and/or Order 92 rule 4 of the Rules of Court 2012 ("ROC"). [2] RM300,000.00 is being sought as security for costs by the sixth defendant. [3] Much earlier, on 20 August 2024, my immediate predecessor awarded RM50,000.00 as security for costs to be paid by the plaintiffs upon application by the first and second defendants. [4] As a result, this application in Enclosure 114 followed suit. [5] Naturally, the plaintiffs object. Case facts: an overview [6] The first plaintiff is a British citizen, while the second plaintiff is an Irish citizen. Both of them are currently residing in Malaysia on a tourist visa. They are married. [7] The third and fifth plaintiffs are their children. [8] The first and second defendants are the landlords of the first plaintiff. The two of them are siblings. [9] The third defendant is a construction company involved in renovations, construction management, and building materials supply. The first and second defendants are the company's sole directors and shareholders. [10] The fourth defendant is a contractor for housing renovations. [11] The fifth defendant is an architect. [12] The sixth defendant is the plumber who allegedly performed the plumbing and piping work at the first and second defendants' house, where the plaintiffs lived at the time of the incident. [13] The first and second plaintiffs planned for a long-term stay in Malaysia to enjoy their retirement life with their children. [14] As they searched for a house to accommodate their plan, they came across the first and second defendants' house. [15] A major reconstruction was being done at the time to turn the house into a two-story structure. [16] In light of their respective capacities, the third to sixth defendants played significant roles in the construction works in question. [17] One evening, while playing with his PlayStation in his bedroom, the fourth plaintiff noticed water suddenly began dripping from the ceiling where a rotating fan was mounted. Within a short period of time, this volume of water had grown significantly. [18] Flooding grew worse as additional water escaped, causing electrical outlets to leak water. As the leak spread outside of the fourth plaintiff's bedroom, it reached the ceiling above the staircase. The bulk of the ceiling collapsed onto the second plaintiff's head. [19] In addition to mild physical injuries, the Incident allegedly left deep emotional scars on the plaintiffs, and they have continued to struggle with their emotional and psychological trauma. As a result, other medical conditions developed. [20] As a result, the plaintiffs filed this action against the defendants seeking general, special, and exemplary damages. Court's analysis and findings [21] In order to support his application for security for costs, the sixth defendant relies on four grounds. In the first instance, the plaintiffs are foreign citizens and are ordinarily residents outside of the jurisdiction of this Court. Second, the plaintiffs fail to state their addresses in the Re-Amended Writ of Summons and/or the Amended Statement of Claim. As a third point, the plaintiffs do not have any assets within this Court's jurisdiction and their financial status is also unknown. Fourth, in the event that the plaintiffs' claim against the sixth defendant is dismissed, the sixth defendant may not be able to recover costs awarded to him. [22] In addition, the sixth defendant argues that RM300,000.00 as security for costs is reasonable and proportionate. [23] In opposition to the sixth defendant's application for security for costs, the plaintiffs argue that it cannot be decided solely by their status as foreign residents. According to the plaintiffs, the Court must consider the whole picture, including whether the claim is genuine and whether the application is oppressive. In this case, the plaintiffs contend that the Court must still consider the circumstances of each case before exercising its discretion whether or not to allow this application for security for costs. [24] Furthermore, the plaintiffs argue that this Court must consider the merits of their case against the defendants, particularly the sixth defendant. In this regard, the plaintiffs argue that the Court should only investigate the merits of this case with clear and obvious issues, and not a case with complex issues, such as the one before me. Furthermore, the plaintiffs argue that the fact that the plaintiffs are foreign citizens or ordinarily reside outside Malaysia does not automatically entitle the sixth defendant to security for costs. The plaintiffs also admitted that after the incident, the plaintiffs' family considered moving to Johor, Singapore, or Dubai as alternative long-term places of residence, and that the family would return to the United Kingdom every now and then and would continue to reside there ordinarily. Moreover, the first and second plaintiffs have shown their addresses in the United Kingdom by displaying their citizenship and passports. [25] Furthermore, the plaintiffs state that the sixth defendant's argument that the Malaysian Court costs order cannot be enforced in the United Kingdom is misconceived. In addition, the plaintiffs claim that the current civil suit concerns issues of safety and habitability. According to the plaintiffs, this is a matter of public policy. Here, the plaintiffs argue that if foreign citizens are effectively shut out from seeking redress by an excessive order for security for costs for a serious incident of this nature when they come to Malaysia and suffer injuries or losses, that would not be in the public interest. As a result, the plaintiffs claim that Malaysia's image and the Malaysia My Second Home ("MM2H") programme would be damaged. Lastly, the plaintiff argues that the plaintiffs in this action include minors, who shouldn't be burdened with this application. [26] It is now time for me to consider the merits of the arguments raised by both parties. [27] To begin, I must examine the law that gave rise to this kind of application. [28] As a starting point, I will focus on Order 23 rule 1 and Order 92 rule 4 of the ROC. They provide the following: Security for costs of action (O.23,r.1)

(1) Where, on the application of a defendant to an action or other proceedings in the Court, it appears to the Court—

that the plaintiff is ordinarily resident out of the jurisdiction;

that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;

subject to paragraph (2), that the plaintiff's address is not stated in the writ or originating summons or is incorrectly stated therein; or

that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then, if, having regard to all the circumstances of the case, the Court thinks it just to do, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just.

The Court shall not require a plaintiff to give security by reason only of subparagraph (1)(c) if he satisfies the Court that the failure to state his address or the misstatement thereof was made innocently and without an intention to deceive.

Where, on the application of a defendant to an action or other proceedings in the Court, it appears to the Court that—

a party, who is not a party to the action or proceedings (which is referred to as a "non-party"), has assigned the right to the claim to the plaintiff with a view to avoid his liability for costs; or

the non-party has contributed or agreed to contribute to the plaintiff's costs in return for a share of any money or property which the plaintiff may recover in the action or proceedings, and the non-party is a person against whom a costs order may be made, then, if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the nonparty to give such security for the defendant's costs of the action or other proceedings as the Court thinks just.

An application for an order under paragraph (2A) shall be made by a notice of application, which shall be served on the non-party personally and on every party to the proceedings.

A copy of the supporting affidavit shall be served with the notice of application on every person on whom the notice of application is required to be served.

The references in the foregoing paragraphs to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceedings in question, including the proceedings on a counterclaim. Inherent powers of the Court (O.92,r.4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [29] The locus classicus on security for costs can be found in Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] 2 All ER 273, where Lord Denning MR stated at pp 285 & 286 that the following factors should be taken into account when deciding whether or not to allow security for costs: ... If there is reason to believe that the company cannot pay the costs, then security may be ordered, but not must be ordered. The court has a discretion which it will exercise. The court has a discretion which it will exercise considering all the circumstances of the particular case. So I turn to consider the circumstances. Counsel for Triplan helpfully suggests some of the matters which the court might take into account, such as whether the company's claim is bona fide and not a sham and whether the company has a reasonably good prospect of success. Again it will consider whether there is an admission by the defendants on the pleadings or elsewhere that money is due. If there was a payment into court of a substantial sum of money (not merely a payment into court to get rid of a nuisance claim), that too would count. The court might also consider whether the application for security was being used oppressively — so as to try and stifle a genuine claim. It would also consider whether the company's want of means has been brought about by any conduct by the defendants, such as delay in payment or delay in doing their part of the work. [30] As the law has been stated, I can now proceed with my analysis of the issues posed to me. Having carefully considered the issues raised by the parties, here is my analysis and conclusion. [31] In dealing with this application, I am aware of the trite legal position that, in addition to the ingredients raised by Order 23 rule 1(1) of the ROC, I have the right to consider the circumstances of each individual case when deciding whether or not to allow the application for security for costs. [32] In Kasturi Palm Products v Palmex Industries Sdn Bhd [1986] 2 MLJ 310, His Lordship Mohamed Dzaiddin J (as His Lordship then was) observed that two major considerations clearly merit attention before ordering security for costs. The first consideration is the fact that the plaintiff is ordinarily resident out of this jurisdiction, and the second consideration is the grounds of the opposing party. It should be noted, however, that security for costs cannot be ordered as of right from a foreign plaintiff, but only when the Court thinks it just to order it. As His Lordship explained at p 311: In the present case, the question is simply whether or not it is just to order security for costs? In my opinion, two major considerations clearly merit my attention. The first consideration is of course the fact that the plaintiff is ordinarily resident out of this jurisdiction. Admittedly, under Rule 1(i), security for costs cannot now be ordered as of right from a foreign plaintiff, but only if the Court thinks it just to order depending on the circumstances of the case. Secondly, it is material to consider one of the grounds of the defendants in disputing the plaintiff's main application ... [33] As a starting point, I am aware that the plaintiffs are foreign citizens and ordinarily residents of the United Kingdom. In other words, the plaintiffs are ordinarily resident outside the jurisdiction of the Malaysian Court. As part of my assessment of this matter, I also accept the evidence that the plaintiffs were previously considering a long-term stay in Singapore and Dubai while they occasionally returned to the United Kingdom. In this regard, it is evident that the plaintiffs do not remain in a single jurisdiction throughout the course of this civil action. [34] In dealing with my analysis further, I also find that there is no evidence before me to show that the plaintiffs have property within the jurisdiction of this court to satisfy any award of costs that may be made by the court following the trial. The six defendant's contention that the plaintiffs' financial situation is also unknown is further supported by this fact. [35] In this regard, the court observed in Ananda Trading (Singapore) Pte Ltd v Palmerstone Holdings Sdn Bhd [1996] MLJU 514 the situation when the plaintiff possessed no assets within its jurisdiction. As His Lordship Suriyadi J (as His Lordship then was) observed: From the bar table the plaintiff also admitted that her client was foreign based. With regard to this issue the case of SHAIK ALI V. SHAIK MOHAMED (1963) 29 MLJ 300 came to mind immediately. His Lordship Hill J.A. opined: "It is quite clear that the court has a discretion in the matter. It is also clear that in the case of a plaintiff, and the applicant should be treated as a plaintiff in the present circumstances, who is out of the jurisdiction land who has no property or assets in the country, that the discretion seems to be invariably exercised in favour of making an order for security for costs." On the same tone His Lordship Zakaria Yatim J (as he then was) in ACE KING PTE. LTD. V. CIRCUS AMERICANO LTD. & ORS. [1985] 2MLJ 75 at page 79 remarked: "Apart from security in lieu of undertaking as todamages, the Second Defendant also asked the Court for an Order that the Plaintiffs do provide security for costs in the sum of RM25,000.00. Since the Plaintiffs are resident out of the jurisdiction of the Court, I think it is appropriate that they provide security for costs." [36] Obviously, I have to agree with the six defendants that no documentary evidence has been presented in support of the plaintiff's financial stability to maintain the claim in a Malaysian court. As a result of considering the above matters, I am concerned that the defendants have a real chance of losing their right to recover costs if this Court dismissed the plaintiffs' case against them. [37] Also, I need to address at this point the plaintiffs' argument that the Malaysian order for costs can be enforced in the United Kingdom by virtue of the Foreign Judgment Reciprocal Enforcement Act 1933 as well as the Reciprocal Enforcement of Judgments Act 1958. [38] In this regard, I have to agree with the six defendants that the enforcement of a costs order is not automatically enforced in the United Kingdom. Therefore, should the six defendant win in this Court, he will have to incur additional costs to pursue his costs in the United Kingdom's Court. Additionally, the plaintiffs may resist such an action by the six defendants to enforce their costs judgment there, which would cause the defendants to incur further costs and hardships. [39] The following are some of the difficulties in enforcing an award of costs in the United Kingdom as explained by His Lordship Azlan Sulaiman JC (as His Lordship then was) in JSS Tobacco Ltd v JSS Tobacco London Sdn Bhd & Anor [2023] MLJU 1437: [29] Though the UK is indeed listed in the First Schedule to the Reciprocal Enforcement of Judgments Act, 1958 and therefore the 1st Defendant can enforce any order of costs made against the Plaintiff there, that is not the only barometer to dismissing the 1st Defendant's Application. Having regard to all of the circumstances necessarily includes taking into account the costs to the 1st Defendant of bringing that action in the UK to enforce any award of costs. Just like here, the process is two-pronged; first the registration phase, followed by the enforcement phase. The Plaintiff could easily oppose both to drive up the expenses and costs the 1st Defendant would have to bear, which would include solicitors and barrister's fees, before even getting a whiff of its costs. Given the exchange rate between the two countries, the costs of doing so could easily escalate and substantially eat into the costs awarded to the 1st Defendant. And it could end up with nothing. [40] Further complicating the issue is the fact that the plaintiffs' real address in the United Kingdom is unknown. As a matter of fact, the plaintiffs disclosed only an address they referred to as an address for service, not their residential address. [41] As regards the issue of merits in which the plaintiffs claim that they have a strong case against the six defendants, I do not think it is appropriate for me to decide on this matter at this time, especially given certain allegations made by the six defendants that he is not privy to the contract with the plaintiffs. Also, I am aware of the plaintiffs' tort claims against defendants, including the six defendant. Nonetheless, this does not mean that I am able to examine the merits of the case at this stage. My concern is the above findings regarding the plaintiffs' status, as well as their financial situation in Malaysia. [42] As to the issue of public policy consideration raised by the plaintiffs, I conclude that the circumstances in the present case justify an order for security for costs. My analysis above led me to this conclusion. [43] Considering minors as plaintiffs, I find that if I order security for costs, the decision is collective and cannot affect the plaintiffs individually. [44] As an additional factor, I find that the sixth defendant's position needs to be protected more so when the plaintiffs have also been ordered to pay security for costs to the first and second defendants. [45] In light of the above, I find that this is a case that warrants a direction to the plaintiffs to provide the security for costs. [46] In terms of how much to award against the plaintiff, I am aware of the formula given by the six defendant, which is 25% of what is claimed by the plaintiffs. This is based on the case of Adarsh Pandit v Viking Engineering Sdn Bhd [1996] MLJU 594, where Her Ladyship Zainun Ali (as Her Ladyship then was) ruled that the security for costs should be 25% of the amount of the claim filed by the applicant: The Defendant in this case applied for the amount of RM45,000 which was the same amount applied for in 1988 when they first filed their application under Order 23 Rules of the High Court 1980. The claim of the Plaintiff is RM200,000. In view of the foregoing and in view of the matter being litigated where witnesses had to be recalled by the Defendant from abroad, the sum of RM45,000 appears to be paltry. [47] After carefully balancing the parties' positions, I only allow RM40,000.00 as security for costs against the plaintiffs collectively. This case cited by the sixth defendant does not represent the trite legal principles to be followed, but rather Her Ladyship's assessment based on the facts before that Court. As part of the calculation of the RM40,000.00 security for costs, I also take into account the RM50,000.00 given to the first and second defendants. Although the merits of the plaintiffs' claim are premature to discuss at this stage, I will also take into consideration not to impose a high amount that would unnecessarily stifle the plaintiffs' rights. Conclusion [48] In light of the above, I grant the six defendants' application for security for costs, with costs of RM3,000.00 in the amount that I just mentioned. Dated 22th May 2026 (Raja Ahmad Mohzanuddin Shah) Judge High Court of Malaya Kuala Lumpur Counsel for the Plaintiffs Messrs Johar Athari & Co. Mubashir Mansor, Muhammad Iman bin Johar, Yong Siong Yaw, Nur Farahin Nellyna Kamari binti Zahir Husain & Luqmanur Diyana binti Mohd Lokman Counsel for the $ 1^{\mathrm{st}} $ $ 2^{\mathrm{nd}} $ & $ 3^{\mathrm{rd}} $ Defendants - Messrs Azim, Tunku Farik & Wong Tan Sixin & Wong Hui Yi Counsel for the 4th Defendant-Messrs Azwar & Associates Muhammad Nabil Nafis bin R MustafaCounsel for the 5th Defendant-Messrs The Chambers of Ooi Wei Qian Haemarubini A/P Pushpa RajahCounsel for the 6th Defendant-Messrs Wen & Co. Nicole Leong Wen Ni & Chai Zi Yan