Jaya Sudhir A/L Jayaram v 1. Dato’ Seri Timor Shah Rafiq (WA-22NCC-165-05/2017)

NAUTILUS TUG & TOWAGE SDN BHD DEFENDANTS JUDGMENT Brief facts [1] The first and second defendants (‘the applicants’) had filed an application to transfer this suit to the court presiding over the Kuala Lumpur High Court Civil Suit No. WA-24NCVC- 544-08/2016. The court concerned is NCVC 2 in the civil division. [2] The Kuala Lumpur High Court Civil Suit No. WA-24NCVC- 544-08/2016 is a tort action, where the second defendant is the plaintiff and the plaintiff, here the defendant. I shall refer 2 to it as the ‘tort suit’. The plaintiff had similarly filed an application in the tort suit, to transfer and consolidate the tort suit with this suit. As the application in the tort suit had been filed prior to the application here, I decided to defer hearing the applicants’ application, and wait for the outcome of the plaintiff’s application in the tort suit. [3] I had subsequently been informed by learned counsel for the applicants that Justice Nordin Hassan had dismissed the plaintiff’s application in the tort suit. I then proceeded to hear the applicants’ application. [4] This suit concerns the dispute over the shareholdings in the fourth defendant. I shall not delve into the intricate facts pertaining to the dispute. I shall for brevity merely focus on the grounds submitted by the applicants pertaining to their application. Grounds for the application [5] The applicants sought to rely on O. 57 r. 1(4)(E) of the Rules of Court 2012, which essentially states that a High Court can transfer a case to another High Court of co-ordinate jurisdiction, if the proceedings can be more conveniently or fairly tried. The rule also stipulates that the court should take into consideration whether it is desirable in the interests of justice. 3 [6] The applicants opined that their application has satisfied the criteria, based on the following grounds:-

There are common questions of fact and/or law,

(ii) The factual matrix to both suits appear to be continuous, contiguous in nature and arise out of the same series of transactions,

(iii) The parties are the same and similar witnesses will be called to give evidence,

(iv) It would save time and costs and prevent two potential contradictory judgments. Findings [7] The applicants’ reliance on O. 57 RC 2012 is untenable. I take the view that the provisions of the Courts of Judicature Act 1964 (‘CJA 1964’) must be read concurrently, in particular s. 23. [8] Section 23 CJA 1964 refers to the civil jurisdiction of the High Court vis-à-vis the local jurisdiction. Section 3 CJA 1964 divides local jurisdiction into the High Court of Malaya and the High Court in Sabah and Sarawak. The High Court of Malaya are courts within the states in the peninsular of Malaysia sans Sabah and Sarawak. 4 [9] I am therefore of the view that O. 57 RC 2012 is only applicable for the transfer from one branch of the High Court to another branch, for example a transfer from the Kuala Lumpur High Court to the Taiping High Court. [10] There is only the High Court of Malaya in Kuala Lumpur, which are divided into various divisions. O. 57 RC 2012 is therefore meant to deal with cases where the transfer is desirable on the basis of forum conveniens; Amalan Lengkap Sdn Bhd v SKS Coachbuilders Sdn Bhd [2016] MLJU 513 (HC). [11] It also did not escape my attention that the applicants had merely sought to transfer this suit to NCVC2. Even if this was to happen, they will still need to make an application to consolidate this suit with the tort suit. One cannot say with certainty that an application to consolidate will be allowed. In fact, I would venture to speculate that it is quite unlikely that the application to consolidate will succeed. My speculation is not without reasons. [12] The applicants’ counsel had in the written submissions set out the grounds proffered by Justice Nordin Hassan in dismissing the plaintiff’s application to transfer and consolidate. In gist, his lordship had apparently held that this suit and the tort suit are cross-actions involving parties who are suing or being sued in different capacities, and that this suit had more parties than the tort suit. It was for these 5 reasons that Justice Nordin Hassan was of the view that both suits could not be consolidated. [13] That being the case, there is no distinct possibility that the applicants could succeed in a subsequent application to consolidate should I allow the transfer. It would be an exercise in futility. Conclusion [14] I have for these reasons dismissed the applicants’ application to transfer with costs of RM1,500. Dated: 11 July 2018. -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the plaintiff Robert Low & Karen Yong Hwei Woon [Messrs Ranjit Ooi & Robert Low] Counsel for the first and second defendants Su Tiang Joo & Pang Kong Leng [Messrs Cheah Teh & Su]