Bimal Pillai v 1. ) Brb Malaysia Sdn. Bhd. (BA-24NCvC-1953-09/2024)

This is the application by the First and Third Defendants for security for costs under Order 23 rule 1(1) of the Rules of Court 2012 (ROC 2012) and/or the Court's inherent jurisdiction, as set out in Enclosures 36 and 30 respectively.

Upon considering the cause papers and the written and oral submissions by the parties, and the authorities cited therein, this Court finds merit in the First and Third Defendants’ application. My reasons are stated below.

The Plaintiff, an Indian national, was employed as the General Manager of Technology in the Research & Development Department of the First Defendant from 1 August 2020 to 24 November 2022.

On 3 August 2022, the First Defendant issued a show cause letter to the Plaintiff concerning allegations of misconduct. Subsequently, the First Defendant terminated the Plaintiff’s employment effective 24 November 2022, by paying three months’ salary in lieu of notice. The Plaintiff appealed the termination on 26 November 2022, but it was rejected by the First Defendant on 15 December 2022.

The Plaintiff filed a representation for unfair dismissal under section 20(1) of the Industrial Relations Act 1967. During the conciliation, the parties entered into a Settlement Agreement and Memorandum of Agreement dated 6 April 2023, whereby the First Defendant paid the Plaintiff RM1,226,988.00 as a full and final settlement of all matters related to his employment and termination. The Third Defendant was not involved in the Plaintiff’s employment or termination and was not a party to the said Settlement Agreement.

On 12 June 2024, the Plaintiff, through his solicitors, issued a notice of demand to the First Defendant alleging failure to protect him as a whistleblower under the Whistleblower Protection Act 2010. The First Defendant denied these allegations and demanded restitution of the settlement sum. No response was received from the Plaintiff.

The Plaintiff also issued a demand to the Third Defendant on 12 June 2024. The Third Defendant denied liability, stating that the Plaintiff was not its employee and that it had no involvement in the disciplinary process.

The Plaintiff subsequently filed this action seeking relief under the Whistleblower Protection Act 2010, naming multiple entities and individuals as defendants, including the First and Third Defendants. He has also filed an application for interim injunctive relief to prevent further disciplinary actions and reliance on the termination.

The First and Third Defendants subsequently filed applications for security for costs in Enclosures 36 and 30, respectively, asserting that the Plaintiff is a foreign national with no permanent residence, has no assets within the jurisdiction, and no known financial means to satisfy a costs order if the claim is dismissed.

The First and Third Defendants seek an order for the Plaintiff to furnish security for costs in view of the history and nature of the proceedings. THE THIRD DEFENDANT’S PRELIMINARY OBJECTION ON THE

The Third Defendant raised a preliminary objection to the admissibility of the Plaintiff’s Affidavit in Reply, asserting non-compliance with Order 41 rule 3 of the ROC 2012. The affidavit was filed in Bahasa Malaysia without a proper jurat stating that the contents were read and explained to the Plaintiff, who is a foreign national not conversant in the national language.

The Plaintiff did not dispute his lack of understanding of Bahasa Malaysia, nor did he take any steps to regularise the affidavit, despite being made aware of the defect by the Third Defendant’s affidavit filed on 25 November 2024. The Plaintiff merely claimed that the omission was unintentional and that no substantial injustice had occurred.

I agree with the Third Defendant’s argument that compliance with Order 41 rule 3 is mandatory when the deponent is illiterate in the language used. The decisions in Gan Thing Phing v Ong Gek Kim (No 2) [1998] 7 MLJ 351 and Ian James Rogers v Menteri Sumber Manusia & Satu Lagi [1998] 5 MLJ 290 clearly hold that a failure to include such a jurat renders the affidavit defective. This Court also agrees that this defect is not a mere irregularity that can be cured, as argued by the Plaintiff.

Accordingly, the Plaintiff’s Affidavit in Reply at Enclosure 33 is disregarded and struck out, and hence the facts in the Third Defendant’s Affidavit in Support are deemed unrebutted.

The relevant provision is Order 23 rule 1(1) of the ROC 2012, which states: “(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.”

It is well established that a foreign plaintiff is not automatically required to provide security for costs. Instead, the Court has discretion to order security when it deems it just and appropriate based on the particular circumstances of the case. In the case of Kasturi Palm Products v Palmex Industries Sdn Bhd [1986] 2 MLJ 310, Dzaiddin J (as his Lordship then was) held that: “Order 23 Rule 1( i ) provides that the court may order security for costs ‘if, having regard to all the circumstances of the case, the court thinks it just to do so.’ ‘These words have the effect of conferring upon the court the real discretion and indeed the court is bound, by virtue thereof, to consider the circumstances of each case, and in the light thereof to determine whether and to what extent or for what amount a plaintiff may be ordered to provide security for costs. It is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs.’ (Supreme Court Practice 1985 Vol 1 p 384). In exercising its discretion, it is clear that the court will have regard to all the circumstances of the case.” [Emphasis added]

In the case of Faridah Begum Bte Abdullah v Dato’ Michael Chong [1995] 2 MLJ 404, the High Court referred to certain circumstances to consider when exercising discretion on whether or not to award security for costs, drawn from Lord Denning M. R. in Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609: “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 to stifle a genuine claim. It would also consider whether the company's want of means has been brought about by any conduct of the defendants, such as delay in payment or delay in doing their part of the work.”

Furthermore, in the case of Adarsh Pandit v Viking Engineering Sdn. Bhd. (1996) 1 LNS 350, Zainun Ali JC (as her Ladyship then was) exercised the Court’s discretion to grant the defendant’s application for security for costs of RM45,000.00. Her Ladyship held that an order for security may be appropriate when the plaintiff has no property within the jurisdiction. “It is undisputed that the Plaintiff has no property within jurisdiction. As case laws such as Shaik Ali v. Shaik Mohamed [1963] CLJU 123; [1983] MLJ 310 and Ace King Ltd v. Circus American Ltd & Ors [1985] 2 MLJ 75 have shown, Courts are more likely to order security for costs to be given to the Defendant in such circumstances, since it is clear as illustrated by Lord Denning M R in Aeronave SPA & Westland Charters [1971] 1 WLR 1146 that: "It is the usual practice of the Courts to make a foreign plaintiff give security for costs. But it does so, as a matter of discretion, because it is just to do so. After all, if the defendant succeeds and gets an order for his costs, it is not right that he should have to go to a foreign country to enforce the order." Even assuming the Plaintiff has property within jurisdiction, it is not sufficient ground for this Court to disallow security. Moreover the mere fact of Plaintiff owning property in a country which has reciprocal enforcement of judgment agreement with Malaysia, is not also a ground for the Court refusing to order security, since the enforcement is not automatic . This point is illustrated in the case of Faridah Begum [1995] 2 CLJ 951; [1995] 2 MLJ 404 and Ng Hui Lip [1951] MLJ 57, which is distinguished from Coldham v. Rant Australia Gold Mining Co [1939] CLJU 18; [1940] MLJ 50.” [Emphasis added]

Additionally, in the case of Raju Rajaram Pillai (t/a Dhanveer Enterprise) v MMC Power Sdn. Bhd. & Anor [2000] 6 MLJ 551, the High Court stated: “My research shows that the case of Pray v. Edie [1786] 1 TR 267; 99 ER 1087 was the first case of its kind where the practice of requiring foreign litigants to provide security was first mooted. This basically was due to the enormous difficulties of enforcing orders of the English courts in foreign jurisdictions. In Crozat v. Brogden, the plaintiff tirelessly sought to enforce a judgment which he had obtained in France. Despite the existence of that judgment, the plaintiff was still required to relitigate the matter once again. To confound the matter further, Davey LJ refused to examine the merits of the case and forthwith ordered the plaintiff to provide security. The law developed with the time. Eventually in England a practice was evolved which require a litigant who was resident abroad to provide security unless the litigant had fixed and permanent assets within the jurisdiction or was a co-plaintiff. In Re Alabama Portland Cement Co Ltd [1909] WN 157, the court was of the view that a litigant residing abroad was considered not to be within the jurisdiction in order to be governed by the procedure for costs and so the litigant must provide security. … Pure and simple, the plaintiff was outside jurisdiction. Not only that the plaintiff too had no assets in Malaysia and this fact was not disputed at all. It would simply be a matter of pure discretion nay to be exercised judicially, having regard to all the circumstances of the case, to decide whether to order security for costs or otherwise. In the words of Hill JA in Shaik Ali v. Shaik Mohamed [1963] MLJ 300 at p 301: “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 and 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.” and I share the sentiments expressed by his Lordship and, accordingly, the plaintiff here should be ordered to pay security for costs. This was a case of a foreign plaintiff with no property at all in Malaysia (Hudson Strumpffabrik GmbH. v. Bentley Engineering Co Ltd [1962] 3 All ER 460; [1962] 2 QB 587; and Mavani v. Ralli Bros Ltd [1973] 1 WLR 468).” [Emphasis added]

Therefore, guided by the authorities mentioned above, the Court’s discretion to grant security for costs must be exercised judiciously, considering: a. Whether the Plaintiff is ordinarily resident outside the jurisdiction. b. Whether the Plaintiff possesses assets within the jurisdiction. c. The likelihood of the Plaintiff being able to satisfy a costs order if unsuccessful. d. The merits of the case. e. Any conduct constituting abuse of process or harassment through litigation.

On the evidence before me, I find that the Plaintiff:

Is an Indian national who previously resided in Malaysia on a work permit tied to his employment with the First Defendant.

Has had his employment terminated since 24 November 2022, with no proof of alternative income or employment.

Has not provided any proof of real assets or immovable property within the jurisdiction.

He expressly admitted in his affidavit that he currently depends on his spouse’s income.

He explicitly admitted in his affidavit that he is unable to pay legal costs.

These factors, taken cumulatively, support the conclusion that the Plaintiff is ordinarily resident outside of the jurisdiction and has failed to demonstrate any significant financial means or assets within Malaysia to meet a potential costs order, coupled with the Plaintiff’s own admission of impecuniosity.

The Plaintiff’s claim that he has resided in Malaysia since 2008 and holds a “Certificate of Residence” is, in any event, inadequate to prove he is ordinarily resident (prior to the striking out of his Affidavit in Reply in Enclosure 33). This Court considers that such a certificate, issued solely for tax purposes, does not constitute definitive proof of ordinarily residence. In any case, this evidence is not properly before the Court, as the Plaintiff’s Affidavit in Reply in Enclosure 33 was struck out for being defective.

Similarly, the Plaintiff’s claims that his daughter is attending school in Malaysia and that his wife is employed here, in the absence of any supporting documentation, are unpersuasive. Nonetheless, these facts are irrelevant to the determination of the present applications.

Furthermore, the Plaintiff did not respond to the Defendants’ challenge to produce passport entries, his immigration status, or any documentation to demonstrate that he is an ordinarily resident within the jurisdiction.

I also note that the Third Defendant is a multinational entity with no direct involvement in the disciplinary process undertaken by the Plaintiff’s former employer, the First Defendant. The connection between the Third Defendant and the Plaintiff’s dismissal is tenuous, raising doubts about the strength of the Plaintiff’s claim. While the First Defendant has presented a defence based on a duly executed and implemented Settlement Agreement, the overall merits of the Plaintiff’s case warrant careful scrutiny.

There is no evidence that the First and Third Defendants’ application is made oppressively or to stifle a bona fide claim.

In the absence of reliable evidence rebutting the facts outlined in the First and Third Defendants’ affidavits, having regard to the discretionary factors in Order 23 rule 1(1) and considering the circumstances of this case, I am satisfied that this is a suitable and appropriate case to order security for costs.

Additionally, having examined the factual matrix and circumstances of this case, I believe that denying the applications would unfairly prejudice the First and Third Defendants, as there is a genuine risk that, if they succeed, they may encounter difficulties in enforcing any costs order in their favour.

For the reasons outlined above, I therefore allowed the First and Third Defendants’ applications for security for costs in Enclosures 36 and 30, respectively, with the following orders:

The Plaintiff is ordered to furnish security for costs in the sum of RM25,000.00 in respect of each application, namely Enclosure 30 and Enclosure 36, within 30 days from the date of this decision.

Such sums are to be paid to the respective Defendants’ solicitors and deposited into an interest-bearing account.

If the Plaintiff fails to provide the specified sum as security for costs as stated in paragraphs (a) and (b) above, the Plaintiff’s claim against the First and Third Defendants shall be struck out without liberty to file afresh.

The Plaintiff shall pay the costs of RM6,000.00 for each of Enclosures 30 and 36. Dated 18 July 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiff : Loh Yi Qing (Messrs Qing Chambers) For the 1st Defendant : Joshua Teoh Beni Chris, Laura Anastasia Kurian & Anna Tan Ling Er (Messrs Skrine) For the 3rd Defendant : Muhammad Faisal Moideen & Shaagita Rajenthiran (Messrs Moideen & Max)