Desley Tng Ze How v Aia Berhad (JA-22NCC-45-07/2024)

AIA BHD (No. Syarikat: 200701032867/790895-D)

AIA PUBLIC TAKAFUL BHD (No. Syarikat: 201101007816/935955-M) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosures 47 & 82)

Enclosure 82 is pertaining to an application by the Defendants via their letter dated 11.4.2025 in this suit not to pursue their defence and counterclaim filed earlier in enclosure 12.

The counterclaim is contained in the Amended Statement of Defence and Counterclaim (hereafter referred to as “ASDCC”), filed by the Defendants on 12.9.2024 in this suit. It was amended by virtue of O. 20 r. 3(1) of the Rules of Court 2012.

The application was objected to by the Plaintiff via a letter dated 15.4.2025 (enclosure 83) as application to strike out the said ASDCC was filed earlier by the Plaintiff on 25.9.2024 via enclosure 13. Submissions were equally filed by the Plaintiff and similarly, by the Defendants not long after.

A subsequent application for discovery by the Plaintiff was also filed on 11.3.2025 but followed with the Defendants’ affidavit to contest the said application. Submissions were then filed by both parties. Lastly was the application via enclosure 47 by the Defendants to consolidate this suit and suit JA-22NCC-46- 07/2024 (“Suit 46”) and for these suits to be transferred to the High Court at Kuala Lumpur.

This Court dismissed enclosure 47, in which the decision by this Court to dismiss enclosure 47 is also a subject of appeal and is canvassed in the later part of this Grounds of Judgment. A. Findings of this Court

The basis for the withdrawal of the counterclaim by the Defendants as notified in the Defendants’ letter is that as trial dates are yet to be fixed as the suits are still at the stage for pre-trial directions, there will be no prejudice to any parties. With the withdrawal, the Defendants hope to have the said counterclaim against the Plaintiff and agents to be consolidated in a newly fresh suit that was already filed by the Defendants against the Plaintiff and agents.

It is this Court’s observation that in short, the Plaintiff by filing the application to strike out the ASDCC, did not want the Defendant sto pursue with the amended version of the Defence and counterclaim. It is of utmost importance to note that the initial Statement of Defence also carries a counterclaim by the Defendants, hence the counterclaim (without going into details the content of the ASDCC) is not an afterthought claim by the Defendants.

However, looking at the ASDCC, it was full with red marks of underlined paragraphs of newly inserted contents and red marks of deletion of earlier contents. In short, it can be seen by looking at the appearance of the ASDCC which contains far too many red marks, it can be said to be a new document altogether filed by the Defendants.

Hence, the letter by the Defendants to withdraw the ASDCC in fact (again without going in depth as to why), answers the Plaintiff’s stand to seek for a striking out of the Defendants ASDCC of the newly inserted paragraphs and the deletion of the existing ones. To this Court, the letter by the Defendants in enclosure 82 is in fact a mutual response by the Defendants obliging the Plaintiff’s application to strike out the ASDCC.

What is left is for this Court to address the issue of cost, taking into consideration the filing of the respective applications and submissions by the Plaintiff relating to this ASDCC itself. This was the stand taken by this Court when allowing the withdrawal of the ASDCC by the Defendants without further deliberation on the need for a proper application to amend, be filed. It follows that the Defendants’ request to withdraw was granted, but with costs. B. Application to consolidate and transfer

The Court then proceeded to hear the Defendants’ application in enclosure 47 to consolidate both this suit with Suit 46 and to transfer them to the High Court at Kuala Lumpur. The transfer was with the purpose for both these suits to be heard together with suit no. WA-22NCC-858-12/2024 (“Suit 858”) (also formerly known as WA-22NCvC-429-07/2024). The 2 main reasons amongst others being both suits and suit 858 involve same facts and question of law and avoid inconsistent result or decision.

The Plaintiff objected to the consolidation application on the reasons that can be summarized by this Court, to be that the Plaintiff’s termination on the reason of ‘misconduct in relation to premium financing’, is subject to proof by the Defendants, of the existence of an act to conspire of the wrongful conduct alleged between the Plaintiff and an individual agent by the name of Lee Chun Kai (“LCK”). C. Findings of this Court on (B) above

This Court concluded that although the “misconduct” is categorized as “in relation to premium financing”, the Statement of Defence refers to the adducing of evidence of a conspiracy to defraud the Defendants from the sales of the insurance policies, giving rise to the commission and bonuses received from such sale based on “Agency Compensation Handbook”.

This would mean, as contended by the Plaintiff, in addition to evidence of conspiracy, the need for the Defendants to show involvement in cash figures pertaining to such sales. The Defendants to the contrary, deposed that reference to allowance, commission, bonus and/or remuneration relating to the sales, must be based on the agents being qualified for such payments to be made.

It is therefore inevitable that each Plaintiff’s number of sales achieved and if it is of sufficient amount for the payment of the commission, be presented. This would then determine which category of the schemes of payment the Plaintiff or agent is entitled to, based on the various remuneration available (see: affidavit in reply by the Defendants in enclosure 60).

This Court had scrutinized the cause papers filed and tabled as exhibits in the relevant affidavits. This Court found that despite the name of LCK was quoted contending a conspiracy with the Plaintiff, nowhere was it presented that LCK or any other agents was named by the Defendants, as party in any of the Defence in the suits. This moved this Court to agree with the Plaintiff that the contention by the Defendants that there was a conspiracy between the agents, justifying the consolidation with Suit 858, is not met.

This therefore eliminates the need to transfer both the suits to High Court at Kuala Lumpur as the need to do so on a conspiracy theory, on the surface is not supported by any facts. Furthermore, as each respective agent’s performance to show his or her qualification for the remuneration is necessary, it only supports the Plaintiff’s stand that each case must proceed separately.

This Court is guided by the following provisions in the Rules of Court 2012; O. 4 r. 1, O. 57 r. 1 and O. 92 r. 4 and the authorities presented by both parties.

With these rules in mind, one other significant point to remember is that this Court and the other Court which the Defendants are seeking to have the suits transferred to, are Courts of co-ordinate jurisdiction. If transfer is permitted, options under O. 4 r. 1 are available for matters to either be tried at the same time or one immediately after another or may order any of the matters to be stayed until after the determination of any other of the causes.

This option must be for a reason and that is not to have the facts and evidence of one suit being jumbled up and mixed with the other. However, the Defendants have not addressed these options in their submissions. This would only mean that from their perspective, there can be no such danger arising. Whether this Court shares the same view will be deliberated.

In a Federal Court case of Central Securities (Holdings) Bhd. v Haron Bin Mohamed Zaid [1979] 2MLJ 244, the Federal Court laid down useful guide, as follows: “The main purpose of a consolidation is to save costs and time and therefore it will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject-matter of the actions to render it desirable that the whole should be disposed of at the same time…Where this is the case, actions may be consolidated where the plaintiffs are the same and the defendants are the same…” …, the causes of action in this third party proceeding and civil suit… where the plaintiffs and the defendants are the same, arise out of the same series of transactions… in our view there are questions of fact or law common to them… We may add that in such circumstances, one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered”.

As can be gathered from the above excerpt, although the general rule in allowing consolidation is towards ensuring saving of costs and time, consolidation will only be allowed if the requirements in the above quoted passage are satisfied by the applicant.

As can be seen, although the subject-matter of the suits (referring to the suits here in Johor and in suit 858) are common and centers on the same allegation of “misconduct in relation to premium financing”, the Plaintiffs are different and requirement of proof of facts would be dependent on the Plaintiffs’ respective sale, individually.

The Plaintiff’s Statement of Claim in paragraph 11 contended that the Plaintiffs were suspended from work on allegation of misconduct whilst the Defendant denies the whole of paragraph 11. Yet, the Defendants contended that the Plaintiffs had committed fraud. It is based on this allegation of fact that gave rise to claiming damages of a very large figure as it being subject to list of potential clients successfully acquired by the Plaintiffs.

Hence, although the same subject matter is involved being list of clients, relying on the Defendants’ contention of fraud on the part of the Plaintiff therefore entails distinct evidence of each Plaintiff’s respective act of fraud. This, must surely be linked to the insurance policies offered and premium paid by these potential clients. The list of clients would also be significant towards calculations of commissions and remunerations. This in turn, relates to losses suffered by the respective Plaintiffs, if not for the wrongful suspension.

A consolidation may mar, not only the above but also the demarcation of each Plaintiff’s alleged act of fraud. In addition to this, the Plaintiff’s affidavit in reply (enclosure 50) averred that the consolidation will only make it easier for the Defendants to prove the conspiracy act alleged by the Defendants against all the Plaintiffs when in the first place, the Defendants had omitted to plead the other names in their Statement of Defence.

For these reasons, this Court was of the view that consolidation and transfer should not be allowed. Enclosure 47 is accordingly dismissed. This Court also reminds itself that transferring cases already filed and registered here should be a measure of last resort, as it would unduly distort the receiving Court’s case statistics.

It is for this reason that the practice would be for the receiving court to equally transfer other suitable cases to the original court that moved the transfer so that statistic of cases at both Courts are at equal balance. This Court, therefore, would be slow to allow such application, unless and until the applicant is able to show all the necessary requirements as stipulated in Central Securities (Holding) Bhd (supra) are fulfilled and that the trial will not leave a mark of minute possibility of evidence for one case being mistaken of the other.

Except for merely stating and repeating that the facts of these suits are the same, the Defendants have failed to eliminate this danger in their application and/or submission. For this reason also, the application to consolidate and to transfer is dismissed. (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) JUDGE HIGH COURT OF MALAYA JOHOR BAHRU Dated 8th of July 2025 Solicitors for the Plaintiff : Lim Pang Kiat Messrs Pang Kiat, Yu Qi Law Chambers Solicitors for the Defendants : 1.

Latifa Haiqa binti Yusoff

Omar Qayyum bin