Donna Lau Shan Shan v 1. ) Christina Mei Mei Ng (BA-23CY-9-09/2021)

DONNA LAU SHAN SHAN (NO. K/P: 780404-08-6008) …PLAINTIF

CHRISTINA MEI MEI NG

YAP HONG HUI (NO. K/P: 820917-14-5249) … DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT

This is the Defendants’ application pursuant to Order 57 and/or Order 4 of the Rules of Court 2012 and/or the inherent powers of the Court seeking the following orders:- S/N fWOcz1Wl4k2pruMp53FqCQ “(i) the proceedings herein be transferred to Kuala Lumpur High Court WA-22NCVC-425-06/2021 (Suit 425) for further directions to be given on the conduct of this matter together with suit 425, including whether it should be heard together or one after another and/or other consequential orders to be dealt with by the learned High

(ii)

(iii) The cost of this application be made costs in the cause;

(iv) such further or other orders or directions be given or made as this Honorable Court deems fit and proper in this circumstances.”

At the outset the learned counsel for the Defendants made an oral application to amend prayers (i) and (ii) of the application. Prayer (i) and (ii) are to read as follows:

the proceedings herein are transferred to Kuala Lumpur High Court WA-22NCVC-425-06/2021 (Suit 425) to be dealt with by the learned High Court Judge Yang Arif Puan Hayatul Akmal Binti Abdul Aziz. S/N fWOcz1Wl4k2pruMp53FqCQ

(ii)

The Plaintiff did not object to the oral application to amend the said prayers and the oral amendments were allowed. However, the Plaintiff had objected to the application to transfer the proceedings.

At the time this application was heard the Defendants have not filed their Statement of Defence.

The Plaintiff was the former employee of Tetap Tiara Sdn. Bhd., the developer of Jaya One, a stratified integrated mixed commercial development located in Seksyen 13, Petaling Jaya, from the year 2005 to 2006. The Plaintiff is also the owner of parcel R1.11G, The Residences, Jaya One, 72A, Jalan Prof DiRaja Ungku Aziz, 46200 Petaling Jaya.

The Defendants are the owners of parcel 57-1, Block D, Jaya One and parcel 63-3, Block D, Jaya One respectively.

The Defendants are seeking an order to transfer this suit BA-23CY- 9-09/2021 (Suit 9-09) to the High Court at Kuala Lumpur to be heard before the learned High Court Judge Her Ladyship Puan Hayatul Akmal Binti Abdul Aziz hearing the civil suit WA-22NCVC-425- 06/2021 (Suit 425), including obtaining incidental directions S/N fWOcz1Wl4k2pruMp53FqCQ thereafter for both actions to be heard together or for the actions to be heard one after the other.

The Defendants contended that there are overlapping facts between Suit 9-09 and Suit 425 which involve the same facts from the same series of transactions. Therefore, Suit 9-09 would be more conveniently or fairly tried by the judge hearing Suit 425 as the said judge would be equipped with the complete facts concerning the Jaya One litigation.

Suit 425 was filed by a group of parcel proprietors of the Jaya One development including the Defendants for inter alia, misappropriation of funds from the maintenance and sinking fund accounts of Jaya One, breach of fiduciary duties, car park rental and conflict of interest dealings against the developer, the past and present members of the Joint Management Body (JMB) and the Management Corporation (MC), the former property manager namely Jaya One Management Sdn. Bhd. (JOMSB) and also all other persons and/or entities related to JOMSB and/or the wrongdoings. The reliefs sought in Suit 425 in paragraph 79 are as follows: “(A) Judgment in the sum of RM4,099,740.00 or any another other sum adjudged by this Honorable Court to be paid by JOMSB, Tetap Tiara, Wong Chee Kooi and Charles Wong (the 4th, 2nd, 7th and 8th Defendants) jointly and severally, to the MC (the 1st Defendant) in S/N fWOcz1Wl4k2pruMp53FqCQ respect of the wrongful and/or illegal appointment and payment of managing agent fees to JOMSB pleaded in paragraphs 30 to 33 herein;

(B) Judgment in the sum of RM3,121,671.16 or any another other sum adjudged by this Honorable Court to be paid by Jaya One Car Park, Tetap Tiara, Wong Chee Kooi and Charles Wong (the 5th, 2nd, 7th and 8th Defendants) jointly and severally, to the MC (the 1st Defendant) in respect of the failure by Jaya One Car Park to pay rental for the Outer Ring Road Car Park Bays at commercially fair rental rates pleaded in paragraphs 38 to 40 herein;

(C) Judgment in the sum of RM758,708.00 or any another other sum adjudged by this Honorable Court to be paid by Priority Class, Tetap Tiara, Wong Chee Kooi and Charles Wong (the 6th, 2nd, 7th and 8th Defendants) jointly and severally, to the MC (the 1st Defendant) in respect of the failure by Priority Class to pay rental for the Inner Ring Road Car Park Bays at commercial rental rates pleaded in paragraphs 38 to 40 herein;

(D) Judgment in the sum of RM1,575,829.00 or any another other sum adjudged by this Honorable Court to be paid by Tetap Tiara (the 2nd Defendant) to the MC (the 1st Defendant) in respect of the Unjustified Payments to Tetap Tiara pleaded in paragraphs 52 to 54 herein; S/N fWOcz1Wl4k2pruMp53FqCQ

(E) Declaration that the 2015 and 2018 Fund Raising Exercises pleaded in paragraphs 56 to 57 above are ultra vires the provisions of the SMA and ought to be set aside with replenishment of the sum of RM966,474.00 illegally used from the Sinking Fund;

(F) Consequent to (E) above, order that the sum of RM966,474.00 be paid for by JOMSB, Tetap Tiara, Wong Chee Kooi and Charles Wong (the 4th, 2nd, 7th and 8th Defendants) jointly and severally, to the MC (the 1st Defendant) for negligently and/or illegally causing the JMB to using the said sum from Sinking Fund for payment of expenses contrary to the provisions of the SMA;

(G) Consequent to (E) above, order that all sums collected from the parcel proprietors of Jaya One from the 2015 and 2018 Fund Raising Exercises pleaded in paragraphs 56 to 57 above do stand to the credit of each paying parcel proprietor to be set off against future payments of Charges and Contributions to Sinking Fund payable by each paying parcel proprietor;

(H) Damages in the sum of RM5,445,760.75 being the shortfall in the Contribution from January 2010 to December 2017 or any another other sum adjudged by this Honorable Court to be paid by Tetap Tiara (the S/N fWOcz1Wl4k2pruMp53FqCQ 2nd Defendant) to the MC (the 1st Defendant) in respect of the Under billed and Uncollected Charges from Tetap Tiara pleaded in paragraphs 58 to 59 herein;

(I) Order for the appointment of an independent and professional property manager/expert (“Independent Expert”) to conduct a forensic and investigative audit (“Forensic Audit”) on the affairs, management and dealings of the JMB and/or MC from 2009 to present including but not limited to:

all dealings with JOMSB, Tetap Tiara, Bina Tetap Tiara, Priority One and Jaya One Car Park as well as other related persons and/or entities such as Xcellent Automation, Wire Ventures and Alan Tan including but not limited to the matters pleaded in paragraphs 37 to 43 above as well as any other appointment or contracts awarded to 3rd party contractors which may be in conflict of interest or against the proper interests of the JMB and/or MC;

(ii) all Salary, Allowance and Bonus Payments pleaded in paragraphs 46 to 51 above in particular as to whether the JMB and MC needed to maintain such heavy workforce and whether the Salary, Allowance and Bonus payments paid for by the JMB and MC from 2009 to 2020 were S/N fWOcz1Wl4k2pruMp53FqCQ legitimate expenses of the JMB and MC or in fact expenses incurred on behalf of JOMSB, Tetap Tiara, Bina Tetap Tiara and/or any of their related companies;

(iii) all Electricity Costs pleaded in paragraphs 55 above in particular as to the proper allocation of electricity costs and whether the JMB and MC, and ultimately the Plaintiffs as parcel proprietors, have been made to pay for or contribute towards electricity costs consumed by the School and Basement Car Park and Elevated Car Park owned by Tetap Tiara as well as the Square owned by Bina Tetap Tiara;

(iv) all invoices for service charges and contribution to sinking fund issued by the JMB and/or MC to Tetap Tiara and Bina Tetap Tiara in respect of the parcels owned by them including but not limited to the School, Basement Car Park and Elevated Car Park and the Square;

all issues of mismanagement and/or failure to properly manage the JMB and/or MC by JOMSB including but not limited that pleaded in paragraphs 63 to 64 above and as to any loss and damage suffered by the JMB and/or MC as a result thereof; S/N fWOcz1Wl4k2pruMp53FqCQ

(J) Order that the Independent Expert do furnish the said Forensic Audit report within a timeframe to be directed by this Honorable Court stating its findings and recommendations including but not limited to any loss and damage suffered by the JMB and/or MC and that the Forensic Audit report be made available at the management office of the MC for inspection of all parcel proprietors of the Jaya One Development including the Plaintiffs;

(K) Order for assessment of any loss and damage found to be suffered by the JMB and/or MC following the Forensic Audit report and for the relevant Defendants to be made answerable and accountable for such loss and damage;

(L) Order for assessment of loss and damage suffered by the MC as a result of the unauthorized entry, reformatting of computer servers of the MC by Swisspac Resources Sdn Bhd and Donna Lau and that Charles Wong, Swisspac Resources Sdn Bhd and Donna Lau (the 8th, 15th and 16th Defendants) be made accountable, jointly and severally, to the MC (the 1st Defendant) for any such loss and damage;

(M) Interest at the rate of 5% per annum on any sum adjudged by this Honorable Court in respect of the relief claimed in (A) to (L) above from date of judgment until the date of full and final settlement; S/N fWOcz1Wl4k2pruMp53FqCQ

(N) Damages to be assessed against the 7th Defendant, the 12th to 14th and the 17th to 33rd Defendants as Members of the JMB and MC for any breach and/or failure to reasonably discharge their fiduciary duties owed to the JMB and/or MC (as the case may be) as well as to all proprietors in Jaya One collectively including the Plaintiffs and Jaya One Parcel Owners in respect of the matters pleaded at paragraphs 30 to 33, 38 to 40, 41 to 43, 45 to 59 and 63 to 65 above and subject to further discovery, any other breaches of fiduciary duty proven before this Honourable Court;”

The Defendants alleged that one of the wrongdoers is the Plaintiff in this suit (Suit 9-09). The Plaintiff is the 16th Defendant in Suit 425 and the Defendants herein are the 18th and 19th Plaintiffs in Suit 425.

In Suit 425, the Defendants had alleged that the Plaintiff herein had facilitated the wrongdoings during the handover of documents from JOMSB to the newly appointed agent to replace JOMSB by attempting to suppress and sabotage the handover of the documents. The only claim in Suit 425 that refers to the Plaintiff is in paragraph 77(c) of the Statement of Claim which states as follows: “77(c) On 24.02.2021, one Mr Chew from Swisspac Resources Sdn. Bhd. and Ms Donna Lau of La Juene Global had entered the office of the MC and S/N fWOcz1Wl4k2pruMp53FqCQ reformatted all computer servers of the MC. When questioned by SCM staff present, Mr Chew said that he had been instructed by Charles Wong of JOMSB to do so. As for Donna Lau, she is known to be a former employee of JOMSB and/or Tetap Tiara and loyal heyto Charles Wong” The Defendants are seeking damages against the Plaintiff in Suit 425.

The Plaintiff’s action against the Defendants in Suit 9-09 is for an injunction against the Defendants to prohibit the Defendants from further publishing and/or causing to be published the purported five

defamatory statements and allegations stated in the Statement of Claim against the Plaintiff. The alleged defamatory remarks were said to have been published on various online and social media platforms by the Defendants. The Plaintiff is also seeking, amongst others for a written apology, general damages, exemplary damages and aggravated damages.

The said defamatory statements arose from an incident which allegedly occurred at the office of the Jaya One Management Corporation (MC) situated in Petaling Jaya and/or matters pertaining to the affairs of the Jaya One management corporation.

The defamatory statements were purportedly circulated and published by the Defendants in Jaya One owners’ WhatsApp group S/N fWOcz1Wl4k2pruMp53FqCQ known as “J1-SELECTED Owners”. The said WhatsApp group consists of owners of Jaya One development.

The grounds for the Court to consider the appropriate forum conveniens are stated in Article 128 of the Federal Constitution, Section 23(1) of the Courts of Judicature Act 1964 and Order 57 of the Rules Of Court 2012.

Section 23(1) of the Courts of Judicature Act 1964 provides for the civil jurisdiction of the High Court as follows: “Civil jurisdiction – general

Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where –

the cause of action arose;

the defendant or one of several defendants resides or has his place of business;

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

any land the ownership of which is disputed is situated, within the local jurisdiction of the court and notwithstanding anything contained in this section in any case where all parties S/N fWOcz1Wl4k2pruMp53FqCQ consent in writing within the local jurisdiction of any other High Court."

The "local jurisdiction" of the High Court is defined in section 3 of the Courts of Judicature Act 1964 as follows: “(a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the

in the case of the High Court in Sabah and Sarawak, the territory comprised in the States of Sabah,

Hence, each branch of the High Court located in any state has concurrent jurisdiction as decided in the case of Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268; [1987] 1 LNS 55, Lim Beng Choon J explained as follows: “It is implicit that a High Court located at Penang or at Alor Setar is but a branch of the High Court in Malaya and each branch of the High Court in Malaya located in any state has concurrent jurisdiction to entertain any civil proceedings regardless of whether the cause of action arose in another state. In addition, paragraph 12 of the Schedule to the CJA further provides for the additional power of the High Court to transfer proceedings in the following terms: S/N fWOcz1Wl4k2pruMp53FqCQ Transfer of proceedings Power to transfer any proceedings to any other Court or to or from any subordinate court, and in the case of transfer to or from a subordinate court to give any directions as to the further conduct thereof: Provided that this power shall be exercised in such manner as may be prescribed by any rules of court.”

However, in making an order for an application under Order 57 the court must be satisfied that any proceedings in that court can be more conveniently or fairly tried in some other court of co-ordinate jurisdiction. ‘Before making any order to transfer any proceedings from the High Court to another High Court of co-ordinate jurisdiction, the High Court judge shall take into consideration whether the High 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 S/N fWOcz1Wl4k2pruMp53FqCQ e. for other reasons it is desirable in the interest of justice that the proceedings should be transferred.’

In Amalan Lengkap Sdn. Bhd.v SKS Coachbuilders Sdn. Bhd. [2016] MLRHU 866, Vazeer Alam Mydin Meera J (as His Lordship then was) held: “Thus, in considering an application for transfer of proceedings on grounds of proper or convenient forum, courts have had regard to, amongst others, the issue of where the cause of action arose, the defendant’s place of residence, the hardship to parties, and interest of justice. see Raja a/l Thangiah v Baldev Singh Bhar (Peguambela & Peguamcara Mengambil Dalam Gelaran Syarikat Baldev Singh) [2001] 2 MLRH 818; [2001] 7 CLJ 130…”

The Defendants’ grounds for the application inter alia are as follows:- a. The factual background to the alleged defamatory remarks being the subject matter of this proceedings is very closely related to the facts and issues in dispute in Suit 425; b. The Defendants intend to rely on amongst others, the defence of justification and that defence requires the facts pertaining to the background to Suit 425 to be dealt with and adjudicated; S/N fWOcz1Wl4k2pruMp53FqCQ c. Having two different courts dealing with substantially the same set of facts would lead to the danger of two different courts reaching different conclusions based on the same set of facts;

The Plaintiff in objecting to the Defendants’ application to transfer the proceedings contended that: a. this Court is the court with the most proximate nexus to the dispute between the parties in this case; b. it is not in the best interest of justice for this case to be transferred to Suit 425.

Upon perusal of the Statement of Claim in suit 9-09, I find the cause of action has taken place at Petaling Jaya, Selangor. The Defendants’ last known address is at Petaling Jaya, Selangor. Further, in Suit 9-09 it is undisputed that the Plaintiff’s place of residence is in Klang, Selangor. Order 57 rule 1(4)(A) to (E) are to be read disjunctively, and I am of the view that the Defendants have not satisfied this Court that the requirements under the said Order had been fulfilled. Hence, taking into account these facts, it is clear this Court has the closest nexus to the dispute in the present case.

Further, Suit 425 was commenced by the parcel owners of Jaya One by way of a derivative capacity on behalf of the MC, inter alia, for misappropriation of funds from the maintenance and sinking fund accounts of Jaya One against the MC’s present and past council members, the former manager namely Jaya One Management Sdn. Bhd. (JOMSB), those in control and all other persons and entities S/N fWOcz1Wl4k2pruMp53FqCQ related to JOMSB and/or the wrongdoings including the Plaintiff in suit 9-09 who purportedly has been facilitating the wrongdoings, namely in suppressing and sabotaging the handover of documents and evidence from JOMSB to the newly appointed property agent to replace JOMSB. Suit 425 involves 21 Plaintiffs and 30 Defendants with 15 interlocutory applications pending currently.

It is my considered view that the issues and facts in suit 9-09 and suit 425 are different in nature with a different cause of action. The reliefs sought in both suits are different and distinct. Though this defamation suit arose from an incident which allegedly occurred at the office of the MC, this common factor by itself is not a cause for the suit 9-09 to be transferred to High Court at Kuala Lumpur and to be consolidated and/or to be heard together with suit 425. The matter in suit 9-09 is distinct and independent of the matter in suit

The Defendants’ contention that the Defendants intend to rely on amongst others, the defence of justification and that the defence requires the facts pertaining to the background to Suit 425 to be dealt with and adjudicated, does not hold water. The Defendants are not prevented to raise the same defence in Suit 9-09, nevertheless.

I refer to the case of Tenaga Nasional Bhd v Advanced Medical Products Sdn. Bhd. [2019] 9 MLJ 100, the learned High Court judge held: “[28] As it is the the defendant had taken the stand that the present proceeding be transferred to the Kuala Lumpur High Court because they had commenced the KL Suit there earlier on. The KL Suit also in S/N fWOcz1Wl4k2pruMp53FqCQ respect of an associate company of the defendant namely Advanced Healthcare Products Sdn Bhd which carries on its business in Sanawang, Negeri Sembilan and which has no relation to the Ipoh Suit as far as the recovery of loss of revenue is concerned. This can be seen from the questions posed by the defendant in their O 14A of the ROC application which solely concerns the legality of the discontinuance of the electricity by the plaintiff which in this court’s view is distinct and independent of the matter concerned with in the Ipoh Suit which is the claim of loss of revenue by the plaintiff. It is this court’s view that merely because the defendants had filed their action first in the KL Suit does not necessarily mean that the Kuala Lumpur High Court is the appropriate forum conveniens. [29] It has to be further emphasised that although it is a common factor in both the KL Suite and Ipoh Suit that the alleged tempering occurred at the defendant’s place of business in Ayer Tawar, Perak this by itself is not a cause for the two matters to be consolidated. This is because the cause of action for both suits are obviously different and consequentially so are the reliefs sort by the parties.”

The Defendants contended that having two different courts dealing with substantially the same set of facts would lead to the danger of two different courts reaching different conclusions based on the same set of facts. Upon perusal of the Statement of Claim in Suit 425 and Suit 9-09, I do not find that both the Suits have substantially S/N fWOcz1Wl4k2pruMp53FqCQ the same set of facts. The facts and cause of action in these Suits are different and distinct. As mentioned earlier in Suit 425 the only paragraph that referred to the Plaintiff was paragraph 77(c). Thus, in this case, I find there is no risk of two different courts reaching different conclusions as the facts and issues in both cases are significantly different. The Defendants’ contention is unsubstantiated.

Further, I agree with the learned counsel for the Plaintiff that transferring and consolidating suit 9-09 with suit 425, which is a massive suit consisting of multiple Plaintiffs and Defendants, with multiple issues and cause of actions, seeking various reliefs, would delay the hearing and expeditious disposal of suit 9-09, which would cause prejudice to the Plaintiff. Therefore, it is my considered view that it is not in the best interest of justice for this case to be transferred to Suit 425.

I find no justification in the learned counsel for the Defendants’ contention that the judge hearing Suit 425 would be in a better position to determine whether or not Suit 9-09 ought to be heard together with Suit 425 because the learned judge would have the full complete picture. This Court is an equally competent Court to hear and dispose of this suit justly based on the facts and evidence adduced.

Based on the reasons stated above, I find that the most suitable or appropriate forum conveniens which takes into consideration the best interest of all the parties and witnesses and for the interest of justice of this case, is at Shah Alam and therefore, this action ought S/N fWOcz1Wl4k2pruMp53FqCQ not to be transferred to the High Court at Kuala Lumpur. I ordered that the Defendants’ application be dismissed with costs of RM 5,000. Dated: 20th of July 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Chew Chun Wei (Messrs Han & Partners) For the Defendants : Zack Lim (Messrs Izral Partnership) S/N fWOcz1Wl4k2pruMp53FqCQ