Dilantha Ranjula Bandara Malagamuwa v ADM Ventures (M) Sdn Bhd & 2 Lagi (24NCC-360-10/2015)

(No. Syarikat: 1115485-X) 45 2

2.

10 PENGGULUNGAN SYARIKAT NO:28NCC-886-10/2015 15 Dalam perkara Seksyen 218(1)(f) dan/atau 218(1)(i) Akta Syarikat 1965 20 Dan Dalam perkara ADM Ventures (M) Sdn. Bhd. (No Syarikat: 1115485-X) 25 Dan Dalam perkara Aturan 88 Kaedah 2 Kaedah-Kaedah Mahkamah 30 2012 DILANTHA RANJULA BANDARA MALAGAMUWA… PEMPETISYEN 35 … RESPONDEN (No. Syarikat: 1115485-X) 40 45 3 5 GUAMAN SIVIL NO.WA-22NCC-19-01/2016

RENEW CAPITAL (M) SDN BHD (No. Syarikat: 903791-U)

TUNKU NAQUIYUDDIN IBNI TUANKU JAAFAR… PLAINTIF- (No. K/P: 470308-05-5259) PLAINTIF 15

1.

20 25 GUAMAN SIVIL NO.WA-22NCC-28-01/2016 ANTARA 30 (No. Passport Sri Lanka: OL 5651991) 35 1. (No. Syarikat: 1115485-X)

2.

40 4 5 GUAMAN SIVIL NO.WA-22NCC-34-01/2016 10 (No. Syarikat: 1027181-X) 15

(No. Syarikat: 1115485-X)

20

25 30 GUAMAN SIVIL NO.22NCC-355-11/2015 35

40 (No. Syarikat: 1115485-X)

2.

45 5 5 GUAMAN SIVIL NO.WA-22NCC-272-08/2016 10 15 (No. Syarikat: 1027181-X)

20

25 GUAMAN SIVIL NO.WA-22NCC-284-08/2016 30 (No. Syarikat: 1027181-X)

GLOBAL CITY GRAND PRIX SDN BHD (No. Syarikat: 774536-A)

MUNISAMY @ ANNAMALAI A/L SALISAMY (No. K/P: 320620-10-5093)

G. RAJESWARI (No. K/P: 381004-71-5022)

AM ASSOCIATES SDN BHD 45 (No. Syarikat: 581032-M) 6 5 GROUNDS OF DECISION [1] At the outset I wish to state vide an Order dated 13/7/2017, the Court ordered amongst others for the trial of 14 Suits mentioned in 10 the said Order be conducted in 3 tranches of Tranche 1 Actions, Tranche 2 Actions and Tranche 3 Actions as follows: [1.1] Tranche 1 Actions comprised 8 Suits -

Kuala Lumpur High Court Originating Summons No:24NCC- 360-10/2015;

(ii) Kuala Lumpur High Court Winding-up Petition No: 28NCC-886- 10/2015;

(iii) Kuala Lumpur High Court Suit No: WA-22NCC-19-01/2016;

(iv) Kuala Lumpur High Court Suit No: WA-22NCC-28-01/2016;

Kuala Lumpur High Court Suit No: WA-22NCC-34-01/2016;

(vi) Kuala Lumpur High Court Suit No: 22NCC-355-11/2015;

(vii) Kuala Lumpur High Court Suit No: WA-22NCC-272-08/2016; and

(viii) Kuala Lumpur High Court Suit No: WA-22NCC-284-08/2016. [1.1.1] The Plaintiffs in Tranche 1 Actions are Renew Capital Sdn 25 Bhd (‘Renew Capital’), Tunku Naquiyuddin Ibni Tuanku Ja’afar (‘Tunku Naquiyuddin’), Marcus a/l Francis (‘Marcus’), Dr. Ranaweera Neil Prasad (‘Dr Ranaweera Neil’), Dilantha Ranjula Bandara Malagamuwa (‘Dilantha’) and GT Global Race (M) Sdn Bhd (‘GT Global’). 30 [1.2] Tranche 2 Actions comprised 4 Suits -

Kuala Lumpur High Court Suit No: WA-22NCC-245-06/2016;

(ii) Kuala Lumpur High Court Winding-up Petition No: 28NCC-857- 10/2015; 7

(iii) Kuala Lumpur High Court Originating Summons No: WA- 5 24NCC-47-02/2016; and

(iv) Kuala Lumpur High Court Suit No: WA-22NCC-425-12/2016. [1.2.1] The Plaintiffs in Tranche 2 Actions are ADM Ventures (M) Sdn Bhd (‘ADM’), Thrinakarasi @ Arasu a/l Munisamy (‘Arasu’) and Thirumaren a/l Munisamy (‘Thirumaren‘) . 10 [1.3] Tranche 3 Actions comprised 2 Suits -

Kuala Lumpur High Court Suit No: WA-22NCC-410-12/2016; and

(ii) Kuala Lumpur High Court Suit No: WA-22NCC-350-10/2016. [1.3.1] Both are defamation actions brought by Tunku Naquiyuddin 15 and Marcus respectively against ADM. [2] Encl.63 is the application of the Plaintiffs in Tranche 1 Actions for the following prayers:

the Plaintiffs be given leave to discontinue the following 20

the Plaintiffs be given leave to discontinue the Tranche 1 Actions with liberty to file afresh; and

the costs of the application be costs in the cause. 25 Background Facts [3] Tranche 1 Actions were scheduled for trial from 4th to 10th October 2017. However on the 1st day of trial on 4/10/2017, lead Counsel for the Plaintiffs, Dato’ Dhanaraj informed the Court -

he had instructions from the Plaintiffs to withdraw the Tranche 30 1 Actions (8 Suits) with no liberty to file afresh and what was left is the issue of costs; 8

(ii) he had instructions from the Plaintiffs in Tranche 1 Actions and 5 the Defendants in Tranche 2 Actions (excluding Faizal Maulana bin Hasan Kutti (‘Faizal’/D7) and City Motorsports Sdn Bhd (‘City Motorsports’/D8) in Suit 47) that “[they] will subsequently be moving the Court primarily on the s.218 Petition (Suit 857) that [his] clients are consenting to the s.218 Petition”;

(iii) he had instructions to proceed with Tranche 3 Actions. [4] Dato’ Prem Ramachandran of Counsel for the Defendants in Tranche 1 Actions amongst others informed the Court that he had no instructions on the same. The Court fixed 10/10/2017 for case 15 management for the Defendants to revert on the Plaintiff’s proposal to withdraw Tranche 1 Actions without liberty to file afresh and whether parties could agree on the issue of costs. [5] On 10/10/2017 the Plaintiffs’ Counsel informed the Court that 20 their clients’ instructions was to discontinue the Tranche 1 Actions but with liberty to file afresh. [6] The Defendants’ Counsel objected to the change of terms of the withdrawal of Tranche 1 Actions and was of the view that a formal 25 application for the discontinuance ought to be filed pursuant to O.21 r.3 of the Rules of Court 2012 (‘ROC 2012’). Plaintiffs’ Counsel was of the view that no formal application need be filed. Having heard the parties, the Court directed the Plaintiffs to file the same and fixed the matter for hearing on 7/11/2017. 30 9 [7] In the Affidavit in Reply of the Defendants, the Defendants have 5 expressed they are not objecting to prayer (a) but they are objecting to prayers (b) and (c) in encl.63. (See para 2 above). [8] On the issue of costs, Plaintiffs’ Counsel have clarified they are agreeable to pay costs for the discontinuance but the prayer for costs 10 in the cause is in respect of the application in encl.63 itself. Plaintiffs’ contentions [9] The Plaintiffs contended that they ought to be allowed to discontinue the Tranche 1 Actions with liberty to file afresh and 15 they relied on the case of Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd & Ors. [2017] 1 LNS 527 arguing that the Plaintiffs are dominus litis (the master of the suit), the Plaintiffs have not gained any interim or interlocutory advantage between the date of the issue of the writ and the point of time when they seek to discontinue, 20 the suit is not at an advanced stage (see also Overseas Union Finance Ltd v. Lim Joo Chong [1971] 1 LNS 101) and there is no injustice caused to the Defendants, rather it is the Plaintiffs who will be prejudiced (see also Hanhyo Sdn. Bhd. v. Marplan Sdn. Bhd & Ors. [1991] 2 CLJ (Rep) 684 (HC) at 693 f-h, and any prejudice can 25 be compensated by costs. Defendants’ Contentions [10] Summarily the Defendants submitted the discontinuance of the Tranche 1 Actions ought to be without liberty to file afresh for these 30 reasons -

it is for the Court to exercise its discretion (Punj Lloyd Oil & Gas (M) Sdn Bhd v Etiqa Insurance Bhd & Ors. [2016] 2 MLJ 676; 10

(ii) the Plaintiffs ought not to be allowed to resile from its original 5 position;

(iii) failure to provide explanation citing Paul Raj s/o Samy Raj v Annamalar s/o Anthonysamy [2003] 6 MLJ 130 at p.136 H-I to p.137 A-B;

(iv) Plaintiffs’ discontinuance is with the ulterior motive of defeating 10 the Court Order dated 13/7/2017 (Hanhyo Sdn. Bhd. v. Marplan Sdn. Bhd & 2 Ors. [1991] 3 CLJ 1783 at 1783-1784);

the case is at an advanced stage of the proceedings;

(vi) any prejudice to the Defendants cannot be compensated by costs; and 15

(vi) Plaintiffs ought to be afforded protection from being troubled by the same subject matter (American International Group Inc. v. London American International Corporation Ltd. [1982] FSR 441 at 442). 20 Issue [11] Whether the Plaintiffs’ discontinuance of the Tranche 1 Actions ought to be with or without liberty to file afresh. Findings 25 [12] O.21 r.3 ROC 2012 reads - “3 Discontinuance of action with leave (O 21 r 3)

Except as provided by rule 2, a party may not discontinue an action (whether begun by writ or otherwise) or counterclaim, or withdraw 30 any particular claim made by him therein, without the leave of the Court, and the Court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued, or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a 35 subsequent action or otherwise as it thinks just. 11

An application for leave under this rule shall be made by a notice 5 of application”. [13] It is trite that the exercise of the Court’s power to discontinue an action upon terms under O.21 r.3 ROC 2012 is an exercise of discretion as held by the Court of Appeal in Newlake Development 10 (supra) and Punj (supra). At para 24 the Court of Appeal in the former case held - “In summary, the discretion to allow the application to discontinue an action and the discretion to impose the terms accompanying it, depends very much on the facts and circumstances of each case”. 15 (Emphasis added) [14] In Fox v. Star Newspaper Company [1898] 1 QB 636, a case cited with approval by the Court of Appeal cases of Newlake Development and Punj, Chitty LJ held at p.639 - 20 “The principle of the rule is plain. It is that after the proceedings have reached a certain stage the Plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then to be no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms … The 25 substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter”. 30 [15] Further the Court of Appeal in Newlake Development held at para 23 that before granting the order for discontinuance of the action, the Court must be satisfied - “i) if a defendant is dominus litis, the general rule is to refuse leave to 35 discontinue (see Overseas Union Finance Ltd v. Lim Joo Chong [1971] 2 MLJ 124); ii) the case is not at an advanced stage; if so, care must be taken not to permit discontinuance. What constitutes an advanced stage depends on the facts and circumstances of the case (see Fox v. 40 Star Newspaper Company [1898] 1 QB 636; 12 iii) the plaintiff may have gained an interim interlocutory advantage 5 between the date of issue of the writ and the point of time he seeks to discontinue (O'Neal v. Mann [2000] FCA 1680); iv) there is no miscarriage of justice occasioned by its refusal to permit the discontinuance; v) it will not prejudice the opponent to the application or take away 10 from him any advantage to which he is fairly and reasonably entitled”. [16] In Hanhyo’s case (supra), Lim Beng Choon J (as he then was) stated the principles in respect of discontinuance at p.1791 A-D as 15 follows: “[T]he Court would not compel a plaintiff to continue his action against a defendant if he does not want to do so provided no injustice is caused to the defendant. Injustice would be caused to the defendant if:

the discontinuance was made with ulterior motive to obtain a 20 collateral advantage as in the case of Castanho v. Brown & Root Ltd;

the discontinuance was not made bona fide by the plaintiff but it was made in order to obtain an advantage to which he has no right to retain since he has ceased to be dominis litis as the defendant 25 has a perfectly good defence - see Overseas Union Finance Ltd. v. Lim Joo Chong case;

by the discontinuance of the action the defendant would be deprived of an advantage which he has already gained in the litigation - see Covell Matthews & Partners v. French Wools Ltd. 30 case”. (Emphasis added) [17] Mindful of the principles gleaned from the aforementioned cases to the present case, in my judgment in the exercise of the 35 Court’s discretion, the Plaintiffs ought not to be granted liberty to file afresh based on the following facts and circumstances. [17.1] The Plaintiffs should not be allowed to resile from its original position to discontinue without liberty to file afresh having in the first 13 place on the 1st day of trial (4/10/2017) through the Plaintiffs’ Counsel 5 expressed to the Defendants’ Counsel and the Court that the Plaintiffs were withdrawing the Tranche 1 Actions without liberty to file afresh. The Defendants did not oppose the discontinuance based on this representation. [17.2] Having perused the Plaintiffs’ Affidavit in Support of the 10 application to discontinue, I find the Plaintiffs have failed to provide any explanation for the discontinuance of the Tranche 1 Actions with liberty to file afresh which suggests that the application is not bona fide as expressed by the learned Judge in Paul Raj’s case in the light of the other matters below. 15 [17.3] As alluded to earlier vide a Court Order dated 13/7/2017 the parties were to proceed with the trial of the 14 suits in 3 tranches. To allow the Plaintiffs to discontinue with the Tranche 1 Actions with liberty to file afresh would defeat the Order of the Court ordering that that the Tranche 1 Actions initiated by the Plaintiffs be heard first 20 followed by the Tranche 2 Actions. It must not be forgotten that the said Court Order was made pursuant to an application filed by the Defendants. [17.4] I find the case is at an advanced stage of the proceedings when the Plaintiffs sought to discontinue the Tranche 1 Actions. It 25 was the 1st day of trial after all the pre-trial management directions had been complied with and the parties had also filed and exchanged the witness statements simultaneously. This would inevitably mean that the Plaintiffs would have gained the strategic advantage of having viewed the Defendants’ defence, Witness Statements, 30 evidence vide the exchange of documents and affidavit. If allowed to discontinue with liberty, the Plaintiffs would be able to re-litigate all the interlocutory applications again giving them a 2nd bite of the 14 proverbial cherry. The interlocutory applications filed by the Plaintiffs 5 in the Tranche 1 Actions include the following:

all the transfer applications filed by the Defendants in the Tranche 1 Actions from the various Courts to be heard before one Judge as they involved the same subject matter: This whole process will have to start all over again which will cancel out what was 10 intended to expedite matters in the first place!

(ii) all other interlocutory applications on the part of the Plaintiffs and Defendants as tabulated in the “List of Costs for All Interlocutory Applications for 8 Suits in Tranche 1”, including discovery, amendment and interim injunctions applications. Here the dictum of 15 the Court in Fox’s case quoted in para 14 above is highly relevant where “after a stage of the action has been reached at which the adversaries are meeting face to face, [t]he [Plaintiffs] who [have] brought [their adversaries into court, shall not be able to escape by the side door and avoid the contest]” and harass the Defendants on 20 the same subject matter. Here I am inclined to adopt the approach of the American International Group Inc’s case (supra) where the discontinuance of the action was allowed by the Court on ”an undertaking that the plaintiffs will not in future bring any action in passing off in respect of any such act as alleged in the present action 25 to constitute passing off whenever committed.” Similarly in the present case the Defendants ought to be protected from being harassed with future litigation on the same subject matter. [17.5] In my view the Plaintiffs’ assertion that any prejudice suffered by the Defendants could be compensated by costs is untenable given 30 the following circumstances:

any order for costs obtained by the Defendants against the Plaintiffs in 7 out of the 8 judgments would in all probability be paper 15 judgments given that Dilantha Ranjula Bandara Malagamuwa, is a Sri 5 Lankan national who is named a Plaintiff in 4 Suits and GT Global, the Plaintiff in 3 of the Tranche 1 Actions has been presented with a Winding Up Petition by ADM and there are several other creditors which have commenced suits against GT Global to recover monies owing to them. Thus the only suit for which order for costs would be 10 more than a paper judgment would be WA-22NCC-19-01/2016 where Tunku Naquiyuddin and Renew Capital are Plaintiffs. [18] Further I am inclined to agree with the Defendants that the Newlake Development’s case can be distinguished on the facts as 15 follows: “In the case of Newlake Development parties were still at the case management stage while the Tranche 1 Suits were sought to be discontinued on the first day of trial. 20 There was a change of solicitors in the case of Newlake Development and the previous solicitors had failed to prepare for the trial. The new solicitors took over the case 11 days before the trial date and the JC had refused to adjourn the trial. This led to the Plaintiff’s application to withdraw the suit with liberty to file afresh. The JC had then proceeded to strike out the suit 25 without liberty. There were no such circumstances in the Tranche 1 Suits herein since all parties were ready to proceed with the trial on 4.10.2017. In the case of Newlake Development, the Plaintiff stood to be gravely prejudiced by the order of the learned JC since the only reason for the 30 discontinuance was because the new solicitors were unable to prepare in time for the trial as a result of the mistakes/lack of preparation by the previous solicitors. In this case, the Plaintiffs have on their own cognizance and for reasons 35 known only to them sought to discontinue the Tranche 1 Suits”. Conclusion [19] Having regard to all the considerations which I have discussed above, in the exercise of the Court’s discretion, the appropriate Order 40 16 to make was discontinuance of Tranche 1 Actions by the Plaintiffs 5 with no liberty to file afresh. Dated: 28/2/2018 10 SGD. (LAU BEE LAN) Judge 15 Counsel for the Plaintiffs: Y.Bhg. Dato’ Dhanaraj together with 20 Encik James Ee Kah Fuk, Cik Kalai Selvi and Encik Muhammad Ariff Messrs K. F. Ee & Co Advocates & Solicitors N-1-2, Pusat Perdagangan Kuchai 25 Jalan 1/127, Off Jalan Kuchai Lama 58200 Kuala Lumpur Counsel for the Defendants: 30 Y.Bhg. Dato’ Prem Ramachandran together with Cik Puvvana Muthuvelu Messrs Kumar Partnership Advocates & Solicitors 35 Suite 12.01 -12.02, 12th Floor Wisma E & C 2 Lorong Dungun Kiri