Carecool Hvac Refrigeration & Engineering v China Construction Yangtze River (M) Sdn Bhd (JA-A52NCvC-51-03/2024)

This is an application by the defendant in Enclosure 33 for the transfer of the proceedings under O.57 r.1(4) of the Rules of Court 2012 (the ROC 2012) to the Sessions Court (construction) in Sepang, Selangor.

The said application was dismissed by this Court on 8.12.2025 with costs of RM1,200.00.

The defendant, dissatisfied with the decision, filed this appeal. 06/02/2026 09:01:15 JA-A52NCvC-51-03/2024 Kand. 69

The plaintiff is in the business of supplying labour, while the defendant is a builder involved in construction work. They entered into an agreement (the agreement) dated 14.8.2022 for a labour supply subcontract for R.C. Works and General Works in the Jingxing Project.

According to the agreement, the plaintiff is responsible for supplying workers to the defendant’s paper factory in Kuala Langat, Selangor. The plaintiff had been providing workers to the defendant until June 2023.

The plaintiff states that two invoices were issued to the defendant: one for supplying workers from the second half of April to the second half of May 2023, totaling RM151,810.50, and another for providing workers from the second half of May to the second half of June 2023, amounting to RM99,182.00. Despite multiple reminders, the defendant has not yet paid the amount owed to the plaintiff. C. TRANSFER OF PROCEEDING RESPECTIVE PARTIES’ SUBMISSIONS

The defendant filed an application in Enclosure 33 to transfer this case to the Sessions Court in Sepang, construction division.

The affidavit in support of the defendant’s application in Enclosure 34 reveals that the defendant believes the case should be transferred for the following reasons:

Because the labor provided by the plaintiff to the defendant is for a project in Banting, Selangor, the appropriate and more suitable court to hear this case is the Sessions Court in Sepang.

The defendant's registered and business address is located in the Klang Valley.

This case should also be transferred to Sessions Court in Sepang for the convenience and interest of the witnesses involved PLAINTIFF’S ARGUMENTS

The plaintiff opposed the application to transfer this case to the Sessions Court, Sepang (construction), and stated that this application is ill-advised, misconceived, and mischievous for the following reasons:

The case against the defendant is simple and straightforward. It involves the plaintiff providing labor for work, and the defendant breaching the contract by failing to pay the plaintiff. The plaintiff argued that this is not a construction case as claimed by the defendant. It is clear that the agreement is titled ‘Labour supply subcontract for R.C. Works and General Works in the Jingxing Project’. The plaintiff contended that this case is a straightforward matter of supplying labour, with no technical construction issues involved. Therefore, the allegation by the defendant that this case should be registered under code ‘C’ is misconceived because this is not a construction case.

The location of the defendant’s factory in Banting is not the sole criterion in an application to transfer proceedings.

Where the cause of action accrues should be considered before a case is transferred to another court.

(d)

The plaintiff also claimed that this case involves a breach of contract, which arose when the defendant failed to pay the plaintiff for services provided. This took place in Johor Bahru, where the plaintiff's office is located and where the payment was supposed to be made by the defendant. The plaintiff also argued that both parties agreed that the payment for the services would be deposited into the plaintiff’s CIMB Bank account in Johor Bahru.

In opposing this application, the plaintiff also stated that the plaintiff’s service is in Johor Bahru, the entire transaction was conducted from the plaintiff’s office in Johor Bahru, and the plaintiff provided the labor from Johor Bahru.

The plaintiff’s witnesses who were involved in the transaction are also in Johor Bahru.

The defendant is attempting to delay this proceeding. Previously, the defendant had applied for a stay of proceedings pending referral to arbitration under s.10 Arbitration Act 2005. The stay was allowed, and this proceeding had been delayed for more than a year. Application for stay of proceedings was made on 8.4.2024, and a conditional stay was allowed by the court on 2.9.2024, where the court granted a 6-month stay for this case to be referred to arbitration. The defendant did not refer this case to arbitration despite having requested a stay, thereby forcing the plaintiff to pay a non-refundable deposit of RM1,620 and to register the case for arbitration with the Asian International Arbitration Centre (AIAC). On 27.1.2025, the AIAC requested that the parties pay a provisional advance deposit (PAD) of RM22,184.10, to be shared equally between them. Plaintiff was willing to pay their share, but despite numerous reminders by the plaintiff, the defendant never responded. The PAD was not paid, and the AIAC struck out the registration on 30.8.2025. On 4.7.2025, the court gave directions for the plaintiff to file their defence. The defendant filed the defence on 30.7.2025, along with this application to transfer the proceedings.

The plaintiff argued that the above demonstrates a tactical ploy by the defendant to delay this case. Additionally, the plaintiff argued that when the case was filed against the defendant in 2024, the defendant did not raise the issue of jurisdiction. D.

O.57 r.1 of the Rules of Court 2012 (the ROC 2012) governs the transfer of proceedings. O.57 r.1(4) of the ROC read as follow:

Transfer of proceedings to another Court (O. 57 r. 1)

Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Court.

A transfer of any proceedings from-

a Subordinate Court to the High Court; or

the High Court to a Subordinate Court, shall be made by an order of that High Court Judge on application by any party by originating summons or notice of application, whichever is appropriate.

A transfer of any proceedings from-

a Magistrates' Court to a Sessions Court; or

a Sessions Court to a Magistrates' Court, shall only be made by an order of that Sessions Court Judge on application by any party by originating summons or notice of application, whichever is appropriate.

Before making any order to transfer any proceedings from-

the High Court to another High Court of co-ordinate jurisdiction;

a Subordinate Court to the High Court;

the High Court to a Subordinate Court; or

a Subordinate Court to another Subordinate Court, the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or Subordinate Court which shall hear the case is located at or nearest to the place where-

(A) the cause of action arose;

(B) the defendant, or one of the several defendants, resides or has his place of business;

(C) the facts on which the proceedings are based exist or are alleged to have occurred;

(D) the land the ownership of which is disputed is situated; or

(E) for other reasons it is desirable in the interests of justice that the proceedings should be transferred. (Emphasis added)

In the case of POSC Ti Sdn Bhd v Kerajaan Negeri Terengganu & Another (2015) 1 LNS 1416, Mary Lim J. (as she then was) held that the power to make such an order under O.57 r.1 of the ROC 2012 is discretionary, and the court must consider the factors set out in O.57 r.4(A) to (E). Her Ladyship also held that ‘not any one factor will prevail over the other’.

This Court will now examine the factors outlined in O.57 r.4(A) to (E). The first factor is where the cause of action arose. In this case, before this Court, the cause of action is for a breach of contract. It has been decided in the case of Malacca Securities Sdn Bhd v Loke Yu (1999) 3 CLJ 22, that the cause of action arose at the place where the breach took place. In Malacca Securities (supra), the plaintiff, a licensed stockbroker with a registered address in Melaka, filed a case against the defendant, whose last known address was in Kuala Lumpur. The defendant, who operated an account with the plaintiff for share transactions, denied the claim and requested that the case be transferred to the High Court in Kuala Lumpur. In his affidavit, the defendant stated that his address is in Kuala Lumpur and that he works in Petaling Jaya, Selangor, and argued that a trial in Melaka would be inconvenient and costlier because he and his witnesses are from Kuala Lumpur. The plaintiff, in response, affirmed in his affidavit in reply that the defendant used its services for transactions in Melaka, and the cause of action arose there. The plaintiff argued that its witnesses are from Melaka and that the case should be heard in the High Court in Melaka. Augustine Paul J. dismissed the transfer of proceedings’ application, and held as follows: “…With regard to accrual of a cause of action in contract cases it is deemed to have occurred at the place where the breach took place” “In a contract for the payment of money the breach occurs when there is a failure to pay the sum promised. This is logical as the meaning of "cause of action" is the act on the part of the defendant which gives the plaintiff his cause of complaint (see Jackson v. Spittall [1870] 5 LRCP 542). The failure to pay will be the cause of complaint. That breach will have to be at the place where the payment is to be made and the cause of action will therefore accrue in that place (see Bank Bumiputra Malaysia Bhd v. Melewar Holdings Sdn Bhd & 4 Ors [1990] 1 CLJ 1246 (refd)). Where there is no agreement as to the place where the payment should be made then the payment should be made at the place where the plaintiff lives. In this regard I refer to Northey Stone Company v. Gidney [1894] 1 QB 99 where Charles J said at p. 100: The action is brought to recover the balance of the price of goods sold and delivered. According to the law applicable to contracts, there being no special stipulation as to the place of payment, the defendant must pay at Bath, where his creditors, the plaintiffs, live. In this case the plaintiff's registered address is in Melaka. The defendant opened an account with the plaintiff in Melaka. The defendant conducted his share transactions in Melaka. The amount due on the account is therefore payable in Melaka. If there is to be any dispute on this issue it is resolved by the fact that the plaintiff's registered office is in Melaka thereby making Melaka the venue for payment of the sum due. In the circumstances the breach in payment of the sum due occurred in Melaka. The plaintiff's cause of action therefore arose in Melaka. The plaintiff's case also comes within sub-para. (c) as the facts on which the action is based occurred in Melaka.” (Emphasis added)

The plaintiff’s registered office in this case is in Johor Bahru, and according to clause 18 of the agreement, payment is to be made to the plaintiff’s bank account in Johor Bahru, thereby establishing Johor Bahru as the venue for payment of the sum due. Therefore, this court finds that the cause of action arose in Johor Bahru.

The defendant’s business and registered address in this case is in Kuala Lumpur, but they chose not to request a transfer of this case to the Sessions Court in Kuala Lumpur. The defendant also stated that the construction project is in Banting, Selangor; therefore, the Sepang Court (Construction) is the more appropriate, suitable, and convenient court to hear this case, and it should be registered under code ‘C’. This court is unable to agree with the defendant’s contention, as this is not a construction case. This case does not involve any technical construction issues; rather, it is a simple, straightforward breach-of-contract case. The agreement itself is titled ‘Labour supply subcontract for R.C. Works and General Works in the Jingxing Project’.

The defendant also argued that, for the sake of justice, the Sessions Court in Sepang should hear this case because the defendant’s witnesses would face difficulties if the case were heard in the Sessions Court in Johor Bahru, as they would need to travel and bring documents with them while using public transportation. However, this argument by the defendant is not convincing because all documents that both parties will rely on at trial would already have been filed with the court before trial. Additionally, the defendant did not identify the witnesses they intend to call or the specific documents necessary to justify a change of venue in the interest of justice. The burden is on the defendant to demonstrate why the Sessions Court in Sepang is the proper court to hear this matter, and the defendant has failed to do so.

In the case of Multiglow Corporation Sdn Bhd & Anor v SCG Consultants Sdn Bhd (2020) 1 LNS 1916, the High Court held that: “[43] I have perused over the Cause Papers. There was no mention of names of possible witnesses who were allegedly all in Kuala Lumpur or Selangor. [44] Apart from that, there was also no mention of the nature of the documents or details of the project and why it must be in Shah Alam High Court. …[52] It is not sufficient to say that it is more convenient to have the matter heard in Shah Alam without disclosing actual facts for this Court's consideration. The burden is on the applicant to show why it is more appropriately heard in Shah Alam and not for the Plaintiff to show why it is not. (s. 101 Evidence Act ). If neither party adduces any evidence, that supports such an assertion, then the party that bears that burden shall fail. In this case, the applicant is the Defendant. …[63] Since the Defendant is unable to show to this Court, who are the witnesses to be called or the documents that are need, both of whom are either in Selangor or in nearby Kuala Lumpur or Putrajaya and further how the change of venue will promote the cause of justice, I am unable to see why this application should be granted.” (Emphasis added)

In addition, the case law referred to by the defendant to support its application before this Court, POSC Ti Sdn Bhd (supra) held that: “[24] On the matter of witnesses, it is not the convenience of the Plaintiff's witnesses but that of the Defendants' that will prevail and that the Court will take into regard. I agree looking at what has been presented before the Court, not only the witnesses but the documents which have anything to do with the claim and the counterclaim all took place in the State of Terengganu.” (Emphasis added).

Reading the passage above from POSC Ti Sdn Bhd (supra), it is sufficient to say that the defendant in that case disclosed the material facts for the High Court to consider, and the same cannot be said in this case.

The defendant argued that it would be inconvenient for their witnesses to travel to Johor Bahru by public transport, unlike the easier trip to Sepang using e-hailing services. The court is of the view that e-hailing services are not as affordable as traditional public transport, as the defendant contends. In Multiglow(supra), the High Court dismissed the defendant's application for a transfer of proceedings, and held that ‘Malaysia has a good road and transport system. It does not take long for a person to travel from KL to Johor Bahru where this case is.’ The court agrees with His Lordships and also notes that the launch of the Electric Train Service (ETS) from JB Sentral on 12.12.2025 has greatly eased travel. Therefore, the defendant’s argument is unfounded.

This Court has perused the application with affidavits filed and is firmly convinced that the requirements of O.57 r.4 have not been satisfied. As mentioned earlier, not only did the cause of action arise in Johor Bahru, but the case also should not be classified under Code C (for construction cases). Additionally, without adducing any evidence of the possible names of the witnesses and the nature of the documents, the defendant merely made a vague assertion that the witnesses would find it difficult to transport the documents and would face hardships when traveling by public transport if the case were heard in Johor Bahru.

Regarding the arbitration mentioned by both parties, this Court believes that the matter has become academic since the previous Sessions Court Judge granted a conditional stay pending arbitration. However, this Court must state that perusing the affidavits filed by both parties concerning the defendant's prior conduct regarding the stay of arbitration raises doubts about whether this application is bona fide and whether it is being used as a tactical ploy, as the plaintiff alleges.

In conclusion, this Court finds that the Sessions Court in Johor Bahru is the appropriate and suitable court to hear this case. Consequently, this application was dismissed with costs for the reasons stated above. Dated 6 February 2026 -sgd-SUHAILY BINTI SAMSUDIN JUDGE SESSIONS COURT JOHOR BAHRU JOHOR To the parties’ solicitors: For the plaintiff : Mr.S.Gunasegaran (Messrs Guna & Chandrika) For the first defendant : Mr.Ng Wen Qing (Messrs.Lim,Choo & Partners)