Dcn Diving Pacific Pte Ltd v 1. ) Ahmad Faizal Bin Othman (WA-22NCvC-668-10/2021)

Ahmad Faizal Bin Othman

Bazalanul’ Azam Bin Yusof

Khairul Arif Bin Ahmad Khalil

Ruhm Marine Sdn Bhd (NO. Syarikat : 1034648-W)

Ruhm Holdings Sdn Bhd (NO. Syarikat : 1418062-V) …Defendan-Defendan 24/08/2022 09:27:25 WA-22NCvC-668-10/2021 Kand. 78 Judgment Introduction

This is an application by the 1st to 3rd Defendants for an application under Order 23 Rule 1 of the Rules of Court 2012 (“the Rules”) for a security of cost of RM200,000 for each of the Defendant from the Plaintiff.

Order 23 Rule 1 of the Rules states as follows:

(a) that the plaintiff is ordinarily resident out of the jurisdiction;

(b) 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;

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

(d) 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 Brief Facts

The Plaintiff had entered into a sub contract with a company called Del Sol which had been awarded a contract by Petronas Folating LNG 1 for the transfer of PFLGN 1 from Medan Kumang in Sarawak to Medan Kembangan in Sabah.

The sub contract between the Plaintiff and Del Sol was a part of this transfer exercise in relation to a subsea tie in the flexible line and ULWD inspection of PFLNG

1.

The Plaintiff carried out the works under the sub contract with Del Sol and invoiced Del Sol for the work done. Del Sol made various payments to the Plaintiff but leaving a balance of RM1,399,758.42.

The Plaintiff’s claim against the Defendants is for conspiracy in that the Defendants had conspired to stop Del Sol paying off the sum owed to the Plaintiff.

The 1st to 3rd Defendant’s application for security of cost is on the grounds that the Plaintiff is incorporated in Singapore and has no assets in Malaysia. The Issue

The sole issue in the Court’s view is the extent of applicability of Order 23 Rule 1 of the Rules. Order 23 Rule 1

The 1st noticeable fact about Order 23 Rule 1 which is clearly spelled out is that the Court is given full discretion to allow security of cost if it is just to do so in the circumstances of the case. The fact that the Plaintiff is incorporated elsewhere or have no assets in Malaysia is not the only consideration or the paramount consideration in determining whether the order of security of cost should be allowed. (See the case of Kasturi Palm Products v Palmex Industries Bhd

In considering the circumstances of the case the Court is of the view that the amount claimed by the Plaintiff is not really big considering the fact that the total sum of the whole contract is only around USD 2 million of which a quarter of million is already paid leaving the balance.

Further the issues for consideration is not complicated and is based for non-payment on invoices issued by the Plaintiff. The Court does not categorize this case as being complex to entitle the Defendants any large amount of cost even if the claim is dismissed.

There is also no evidence led by the Defendants to show that the Plaintiff will be unable to pay cost assessed by the Court in the even the claim is dismissed. On the converse the Court is satisfied that the Plaintiff is a solvent company and can easily pay any cost incurred. Conclusion

In the upshot the Court regards the Defendant’s application as baseless and dismisses the application with a cost of RM3,000. Dated : 23.8.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Mahathir 9A-21-3A, Level 21 Business Suites Wisma UOA Centre Jalan Pinang 50450 Kuala Lumpur For the Defendants: Tetuan Mansur & Yazrudin JC 153, 1st Floor Jalan BMU 7 Bandar Merlimau Utara 773000 Merlimau Melaka Tetuan Steven Thiru & Sudhar Unit A1-12-01, Arcoris Mont Kiara Jalan Kiara 50480 Mont Kiara Kuala Lumpur Case Cited:

Kasturi Palm Products V Palmex Industries Sdn Bhd 919860 2 MLJ

310.