Ec Excel Wire Sdn. Bhd. v Mepspec Engineering and Services Sdn. Bhd. (CA-22NCC-1-01/2024)

MEPSPEC ENGINEERING AND SERVICES SDN. BHD. [ Company No.: 201801043001 (1305033-U) ]

PARAGRENE LAND BERHAD [ Company No.: 199601027709 (400061-H) ] ...DEFENDANTS GROUNDS OF JUDGMENT INTRODUCTION [1] The Defendants applied for the Suit before me to be transferred to the Shah Alam High Court. [2] Having considered the affidavits before me particularly the grounds cited by the Defendants in support of their application, and the Plaintiff’s opposing affidavits and the submissions of both counsels, I decided to dismiss the application. [3] The Defendants now appeal against that dismissal. BACKGROUND [4] The Plaintiff’s action is a rather straight forward claim for the Defendants’ non-payment in a total sum of about RM4,161,275.00 for goods sold and delivered. [5] The Defendants argued that as –

the goods were sold to the 1st Defendant whose business address is in Petaling Jaya, Selangor;

(ii) the Defendants’ business addresses are in Petaling Jaya, Selangor;

(iii) the Plaintiff’s cause of action is for non-payment of the goods for a project situated in Selangor;

(iv) the material witnesses are from Selangor; and

the relevant documents governing the Plaintiff’s claims are addressed to the 1st Defendant, whose business address is in Selangor. this Suit should be heard at the Shah Alam High Court and not in Kuantan. [6] The Plaintiff’s objection to this application is mainly premised on the fact that as the Plaintiff’s claim is for the Defendants’ failure to pay for goods that it had sold and delivered to the Defendants, the payments should have been made to the Plaintiff whose business address is in Kuantan, Pahang. Thus, the cause of action arose in Kuantan, Pahang and not in Shah Alam, Selangor. In fact, the Plaintiff argued, as it had filed a very straight forward claims against the Defendants, the Court could resolve the dispute through a summary judgment without going through a full trial. Therefore, the Defendants’ arguments about the hassle that would be caused to witnesses travelling from Selangor to Pahang does not arise. FINDING [7] The law on transfer of proceedings is trite. The underlying jurisprudence on the transfer of proceedings is found in the provisions of Section 23(1) of the Courts of Judicature Act 1964 ("CJA"), paragraph 12 of the Schedule to the CJA and Order 57 r. 1(1) and 1(4) of the 2012 Rules. [8] Applying the law, the 1st threshold to be fulfilled by the Defendants is to satisfy this Court that -

the matter can be more conveniently tried at the Shah Alam

(ii) the matter can be more fairly tried at the Shah Alam High Court instead of the Kuantan High Court. [9] In determining the said threshold, the Defendants shall show the existence of any of the matters enumerated in O. 57 r. 1(4) (A) – (C). This is in view of the said provision requiring this Court, in determining whether or not to allow the Defendants’ application, to consider -

whether the Shah Alam High Court is located at or nearest to the place where the cause of action arose;

(ii) whether the Shah Alam High Court is located at or nearest to the place where the Defendants reside or has their place of business; or

(iii) whether the Shah Alam High Court is located at or nearest to the place where the facts on which the proceedings are based exist or are alleged to have occurred. [10] This Court must also consider whether for other reasons it is desirable in the interests of justice that the proceedings should be transferred to the Shah Alam High Court. [11] In exercising the discretionary power no one single factor will prevail over the other. The Court must weigh all the factors relied on in making a decision as to whether the application ought to be favorably considered : POSC TI Sdn Bhd v. Kerajaan Negeri Terengganu & Anor [2015] 1 LNS 1416; [2016] 10 MLJ 663. [12] I am inclined to agree with the Plaintiff's counsel when he cited Malacca Securities Sdn Bhd V Loke Yu [1998] 3 CLJ 22 and I apply the principles laid down in this case squarely to the application before me due to the similar nature of the cause of actions in that case and the case before me. Augustine Paul J (as His Lordship then was) held: “... That brings into focus the circumstances in which a court which has jurisdiction to hear a case can lawfully decline to exercise its jurisdiction on the ground that the case must be heard by a more accessible court. In declining to exercise jurisdiction a court does so not on grounds of convenience but of the suitability or appropriateness of another tribunal in the interests of all the parties and for the ends of justice ... In a contract for the payment of money the breach occurs when there is a failure to pay the sum promised. This is logical as the meaning of "cause of action" is the act on the part of the defendant which gives the plaintiff his cause of complaint (see Jackson v. Spittall [1870] 5 LRCP 542). The failure to pay will be the cause of complaint. That breach will have to be at the place where the payment is to be made and the cause of action will therefore accrue in that place (see Bank Bumiputra Malaysia Bhd v. Melewar Holdings Sdn Bhd & 4 Ors [1990] 1 CLJ 1246 (refd)). Where there is no agreement as to the place where the payment should be made then the payment should be made at the place where the plaintiff lives. ... In this case the plaintiff's registered address is in Melaka. The defendant opened an account with the plaintiff in Melaka. The defendant conducted his share transactions in Melaka. The amount due on the account is therefore payable in Melaka. If there is to be any dispute on this issue it is resolved by the fact that the plaintiff's registered office is in Melaka thereby making Melaka the venue for payment of the sum due. In the circumstances the breach in payment of the sum due occurred in Melaka. The plaintiff's cause of action therefore arose in Melaka. The plaintiff's case also comes within sub-para. (c) as the facts on which the action is based occurred in Melaka. I pause to add that the defendant's denial of liability is a matter for resolution at the trial and does not alter the conclusion that I have drawn. As the plaintiff has brought itself within s. 23(1)(a) and (c) of the CJA it is entitled to file this action in Melaka notwithstanding the fact that the defendant resides in Kuala Lumpur. The defendant's application is therefore without any merit.” [6] The following could be distilled from Justice Augustine Paul’s decision :

when a court decline to exercise its jurisdiction on the ground that the case must be heard by a more accessible court, the reason for such decline is not due to convenience but suitability or appropriateness of another tribunal in the interests of all the parties and for the ends of justice;

(ii) when failure to pay is the cause of complaint, that breach will have to be at the place where the payment is to be made and the cause of action will therefore accrue in that place;

(iii) where there is no agreement as to the place where the payment should be made then the payment should be made at the place where the plaintiff lives; and

(iv) as the defendant would usually open an account with the plaintiff at the plaintiff’s place of business, the amount due on the account is therefore payable at the plaintiff’s place of business. [7] This decision was followed by Vazeer Ali J (as His Lordship then was) in Amalan Lengkap Sdn Bhd v SKS Coachbuilder Sdn Bhd [2016] MLJU 513 and Azimah Omar J (as Her Ladyship then was) in Roti Roti Manufacturing Sdn Bhd v One Auto Worldwide (M) Sdn Bhd [2018] MLJU 424. [8] Applying the decision in Malacca Securities, this Court hold that if there is to be any dispute on the issue of payment – as in this case - it is resolved by the fact that the Plaintiff's registered office is in Kuantan thereby making Kuantan the venue for payment of the sum due. [9] In the circumstances the breach in payment of the sum due occurred in Kuantan. The Plaintiff's cause of action therefore arose in Kuantan. [10] The answers to the questions enumerated in O. 57 r. 1(4) (A) – (C) are therefore all in the negative for the Defendants. [11] As the plaintiff has brought itself within s. 23(1)(a) and (c) of the CJA it is entitled to file this action in Kuantan notwithstanding the fact that the Defendants business addresses are in Petaling Jaya, Selangor. [12] I hold that it is just for the case to be retained here in Kuantan instead of having it transferred to the Shah Alam High Court. [13] As the application has no merit, it was dismissed with costs. Dated : 30 December 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya PARTIES : Solicitor for the Plaintiff: En. Muthu Kumar a/l Suya Kumanan Tetuan Ravi Moorthi Noriza Mala & Partners A-3, Tingkat 1, Lorong Tun Ismail 10 Jalan Tun Ismail, 25000 Kuantan, Pahang Ref. : RMNM/L/12860/2023/mk Email : rmnm_p@yahoo.co.uk Solicitor for the Defendants: En. Dinesh Nandrajog Tetuan Nandrajog 3-9-9, Tower 3, UOA Business Park No.1 Jalan Pengaturcara U1/51A Section U1, 40150 Shah Alam, Selangor Ref : N/20946/2024/LA/DN Email : general@nandrajog.co