HON KUM YOONG (NRIC No. 600108-08-6301) Sole proprietor carrying business in the name and style of FIRST INDUSTRIAL (Registration No. 00857840-P) …DEFENDANTS 3 GROUNDS OF JUDGMENT (ENCLOSURE 1) A. BACKGROUND FACTS [1] This an application filed under Order 57 Rule 1 of the Rules of High Court 2012 (“ROC”). The Plaintiff in the present Originating Summons (Enclosure 1) is simply applying for a transfer of another case the Plaintiff has with the 2nd Defendant instituted in the Shah Alam Sessions Court Suit No. BA-B52NCVC-193-06/2016 (“Sessions Court case”) to the High Court of Shah Alam to be heard together with another case the Plaintiff has with the 1st Defendant instituted in the Shah Alam High Court Suit No. 22NCVC-65-02/2016 (“High Court Suit”) under Order 4 of the ROC. [2] Central Spectrum (M) Sdn Bhd (“Plaintiff”) previously was the registered owner of 8 lots of industrial land (“Lands”). The Plaintiff has appointed two separate agents to sell off the Plaintiff’s lands. Both appointments were made at separate times and vide separate documents. Tho Mei Poh (Forest properties) (“1st Defendant”) as well as Hon Kum Yoong (First Industrial) (“2nd Defendant”) were the agents separately appointed by the Plaintiff 4 to sell off the Plaintiff’s Lands. It is undisputed that the 1st Defendant was appointed as the Plaintiff’s ad hoc agent vide a letter dated 23.5.2015 (“1st Contract”) while the 2nd Defendant was appointed as the Plaintiff’s ad hoc agent vide a letter dated 26.11.2014 (“2nd Contract”). It remains undisputed that the Lands were subsequently sold to Polygold Beverages Sdn Bhd (previously known as Etika Beverages Sdn Bhd) (“Purchaser”). Both the 1st and 2nd Defendants claim agency fees for the successful sale and purchase of the Plaintiff’s Lands to the Purchaser. [3] The entire basis of the Plaintiff’s present case is that the Plaintiff should not be found to be liable to two separate agency fees for one single transaction. However this Court must emphasise that, such a supposition is void of any legal authority and is a substantive matter that should not be determined in the present Originating Summons and as such cannot be the basis of the Plaintiff’s case. Having two agency fees for one single transaction is not altogether peculiar if it may be proven that the sale and purchase agreement is a culmination of two agents’ works. The 1st Defendant and the 2nd Defendant might have their own set of facts of contribution that had led to the successful sale and purchase of 5 the Plaintiff’s Lands. It is not necessarily double claiming. As long as it can be proven that the 1st and 2nd Defendants have indeed performed their duties as agents leading up to the sale and purchase, then the Plaintiff is inevitably liable to pay both of the Defendants’ agency fees. If that is to be the case, then the Plaintiff has itself to blame to subject itself to appoint two agents who both have performed their end of the bargain under their respective contracts. B. WHETHER THERE ARE REASONS TO CONSOLIDATE OR TO TRY THE SESSIONS COURT CASE AND THE HIGH COURT CASE TOGETHER [4] This Court has earlier highlighted that it is not altogether preposterous for the Plaintiff to be liable to pay two separate agency fees for one single transaction so long as it is proven that both the 1st and 2nd Defendants have duly performed their respective contracts. Thus, the Plaintiff cannot stake its case on the underlying notion that a vendor cannot be subjected to numerous agency fees for one single transaction. There is no such general rule and the Plaintiff has not at all furnished any 6 precedents or authorities to persuade this Court to agree to the same. [5] Thus the remainder of the Plaintiff’s contention is that the cases should be heard together in view of avoiding duplicity of proceedings on the ground that the same facts, evidence, and witnesses would have to be called and furnished in two separate proceedings. It is the Plaintiff’s contention that the present Application is made bona fide in efforts to save time and costs. Nonetheless, this Court hesitates nothing to dismiss this contention brought forth by the Plaintiff. The present Application has nothing to do with saving costs and time and instead has everything to do with the Plaintiff attempting to eschew away from the possibility of having to pay both the agents that it has appointed (being the 1st and 2nd Defendants) for their work done. [6] The only common feature or fact between the High Court Case and the Sessions Court case is just the subject matter involved (being the Lands) and Purchaser involved in the sale. All other facts revolving the appointment of the 1st and 2nd Defendants, the causes of action, the introduction of the Purchaser to the Plaintiff, the terms under the appointments, as well as the persons involved 7 in the performance of the two separate contracts are altogether distinct and different. [7] The Plaintiff largely relies in Order 4 rule 1 of the ROC in contending that the two cases arise out of the same or series of transaction (in reference to the sale and purchase) or that the two cases share the same questions of law or facts. [8] Now, this Court must highlight that the Plaintiff has too conveniently made an isolated application of the provision only to the fact of the sale and purchase of the lands. This is the sole ‘transaction’ that the Plaintiff strenuously submits to this Court. However, this Court must highlight that the transaction involved in the two cases is not just limited to the sale and purchase of the Plaintiff’s lands but also the transaction between the Plaintiff and the 1st Defendant, as well as the transaction between the Plaintiff and the 2nd Defendant that had led to the contractual relations and liabilities between the parties under their respective contracts. What transpired between the Plaintiff and the 1st Defendant is of no concern to the 2nd Defendant and vice versa. The Defendants themselves are not privy to whatever contracts each Defendants has with the Plaintiff. The Plaintiff cannot look at the sale and 8 purchase transaction in isolation only to the conclusion of the sale of the lands. The transaction spans from the separate facts of the separate appointments of the 1st and 2nd Defendants as the Plaintiff’s agents, the separate terms of the 1st and 2nd Contracts, obligations and liabilities of between the Plaintiff and the 1st Defendant and between the Plaintiff and the 2nd Defendant, the separate and distinct performance of the 1st and 2nd Defendants under the separate contracts, and ultimately the conclusion of the sale and purchase of the land. It is patently clear here, besides the common conclusion of the sale and purchase of the land, every other fact to the transaction are altogether distinct and irrelevant of each other. The 1st Defendant’s performance under its contract with the Plaintiff does not affect or deter the 2nd Defendant’s performance under its separate contract with the Plaintiff and vice versa. [9] The 1st and 2nd Defendant’s rights to be paid do not solely depend on the transaction of the sale and purchase but also depend on each agent’s respective performance under the different contracts. The series of transaction is completely different between the 1st Defendant’s cause of action and performance under the 1st Contract with the Plaintiff and the 2nd Defendant’s cause of action 9 and performance under the 2nd Contract with the Plaintiff. There are two separate contracts, different set of terms and obligations, separate facts of the performance of the respective contracts, and separate causes of action which gave rise to the 1st and 2nd Defendant’s separate rights to claim against the Plaintiff. [10] Owing to the disparity as alluded above, the questions of fact or law in the two suits also differ. The relevant question of law in the High Court Case would revolve around the 1st Defendant’s appointment as the Plaintiff’s agents and the terms governing the 1st Contract which the 2nd Defendant is not privy to and is irrelevant to the 2nd Defendant. The relevant question fact in the High Court Case would revolve around the 1st Defendant’s performance under the 1st Contract it entered with the Plaintiff, which does not concern the 2nd Defendant at all. The differences would apply vice versa in the Sessions Court case. Whatever that was agreed and performed between the 2nd Defendant and the Plaintiff is of no relevance to the 1st Defendant. If it so happens that the 1st and 2nd Defendants have played their respective part in performing their respective contracts, then the Plaintiff would inevitably be liable to pay both the 1st and 2nd Defendants for their joint-contribution (in 10 performance of each separate contracts) leading to the conclusion of the sale and purchase of the lands. [11] There is no risk of financial hardship, injustice or prejudice to the Plaintiff if the Plaintiff is found to be liable to pay both the Defendants. It is more probable than not that the Plaintiff is caught in its own rash pursuit to conclude the sale with the least amount of costs. It is undisputed that the 2nd Defendant had offered its services at half the price (RM610,253.38) as compared to the 1st Defendant’s fees (RM1,220,506.75). [12] Allegedly the facts go as far as that the 1st Defendant had introduced the Purchaser to the Plaintiff. Instead of following through with the Purchaser upon the 1st Defendant’s introduction, the Plaintiff instead side-stepped the 1st Defendant’s introduction and attempted to sell off the land at half the agency fees through the 2nd Defendant to the Purchaser’s own subsidiary/ related company (Pok Brothers Sdn Bhd). It was even admitted by the Plaintiff that the deal with Pok Brothers Sdn Bhd ultimately had led to the conclusion of the sale not with Pok Brothers Sdn Bhd, but with the Purchaser (which was introduced by the 1st Defendant). Understanding these facts would reveal the underlying reason 11 behind the Plaintiff’s predicament of possibly having to pay two different agency fees for one single sale of lands. [13] Having the above in mind, it is patently clear that the facts regarding the performance of the 1st and 2nd Defendants of each respective contract are utterly different and is irrelevant of each other. The High Court would be dealing with the 1st Defendant’s performance of the 1st Contract with the Plaintiff (which is irrelevant to the 2nd Defendant) and the Sessions Court would be dealing with the 2nd Defendant’s performance of the 2nd Contract with the Plaintiff (which is irrelevant to the 1st Defendant). Consequently, the witness and evidence relevant to the two cases is different from one another, further disproving the Plaintiff’s contention that having the cases heard together would save time and costs. [14] This Court is guided by the case of Ng Joo Soon @ Nga Ju Soon v Devechem Holdings (M) Sdn Bhd & 9 Ors Suit No. D1-26-68- 2008 in which the High Court had held that: “The whole rationale behind consolidation is to benefit everyone concerned by saving time and costs, and avoiding duplicity; be it of witnesses, counsel or the court. In this case 12 the two proceedings separately progressed… without affecting one another.” [15] Applying the same principle enunciated in the precedent above, it is vividly clear that it is altogether unjustifiable to have the two cases consolidated or tried together as the two cases do not affect one another and that there is no risk of duplicity of witness, counsel or the Court. [16] It has also already been decided that the mere sharing of common subject matter (lands) is not sufficient ground to have two different cases consolidated or tried together within the ambit of Order 4 rule 1 of the ROC. (see Mayban Trustee Bhd v Amalan Tepat Sdn Bhd & Anor [2006] 5 CLJ 43) [17] This Court draws further guidance to Amelia Tee J’s recent decision in the case of Asia Pacific Higher Learning Sdn Bhd v Eagle One Investment Ltd [2016] 1 LNS 234. This Court is minded that the facts of this case differ from the present case in that the Court there dealt with the application for consolidation of two separate cases for defamation. Nonetheless the principle 13 applied in this case remains valuable and relevant to the present case. Amelia Tee J had decided the following: “The 6th Defendant further states that the alleged libel in Guaman 8 is based on the complaint of the plaintiff against the publication of only one article whereas that in Guaman 7 was based on the complaint of an individual named Wan Mazlan bin Mohamed Woojdy against 4 articles… … The Court is well aware of the factors to be borne in mind when considering an application for transfer and consolidation. In this case, the Court is not convinced that with different plaintiffs in the two suits and with different alleged defamatory statements, the two suits could be easily consolidated and heard together”” [18] The relevant principle here is that, since the two suits arose from different sets of defamatory statements, then the two suits accordingly arose from different causes of action based on different statements. Similarly so in the present case the different 14 Plaintiff, being the 1st and 2nd Defendant based their claim on different contracts separately entered into with the Plaintiff. Thus, the 1st and 2nd Defendant’s case arose from different causes of action. Therefore, there are no reasons for the two cases to be consolidated and heard together. [19] Thus it is clear that the High Court case and the Sessions Court case do not share the same questions of law or facts, and same or series of transaction. This Court accordingly finds that the Plaintiff’s application to have the two cases to be either consolidated or to be tried at the same time is entirely baseless. [20] Consequently, it is not necessary to deliberate on whether or not the Sessions Court case should be transferred to be tried by the same High Court under Order 57 rule 1 of the ROC as there are no reasons that the two cases be heard together by the same Court to begin with. Not only that, none of the grounds (which remain unproven) contended by the Defendant fall within the considerations stipulated under Order 57 rule 1(4) of the ROC. In fact, the Plaintiff has not at all submitted on the applicability of Order 57 rule 1 of the ROC to the present case in its submission. 15 [21] Thus, having all of the above in mind, this Court finds that there is no reason to transfer the Sessions Court Case to the High Court to be heard together with the High Court Case.