Lin Woon Fui v Dato Seri Thai Kim Sim (WA-23NCvC-22-03/2022)

that Civil Suit No. WA-23NCvC-31-04/2022 (Suit 31) is transferred and heard/tried separately from Civil Suit No. WA- 23NCvC-22-03/2022 (Suit 22); 05/05/2025 11:22:48

that Civil Suit No. WA-23NCvC-23-03/2022 (Suit 23) is transferred and heard/tried separately from Suit 22;

that the costs of this application shall be borne by the Plaintiffs; and

such other order or relief that this Court deems fit and proper. [2] The grounds of this Notice of Application are set out in the Notice of Intention to Refer to Affidavits dated 13.12.2024 (Enclosure 41), the Affidavit in Support of Dato’ Seri Thai Kim Sim affirmed on 1.11.2024 (Enclosure 33), the Affidavit in Reply of Dato’ Seri Thai Kim Sim affirmed on 13.12.2024 (Enclosure 39), the Affidavit in Support of Dato’ Teh Chee Kien affirmed on 1.11.2024 (Enclosure 34) and the Affidavit in Reply of Dato’ Teh Chee Kien affirmed on 13.12.2024 (Enclosure 40). [3] The parties (Plaintiff and Defendant) in the respective suits are as follows: Suit 22: between Lin Woon Fui and Dato’ Seri Thai Kim Sim. Suit 23: between Lin Woon Fui and Dato’ Teh Chee Kian. Suit 31: between Dato’ Seri Tan Bee Geok and Dato’ Seri Thai Kim Sim. [4] By Order of Court dated 20.9.2022 (Enclosure 21) vide application by the Defendant in Suit 31 it was ordered that Suit 31 is to be transferred and heard/tried together with Suit 22. S/N D/3cpa0BukywzZwnvtB6gg [5] By Order of Court dated 26.10.2022 (Enclosure 25) vide application by the Defendant in Suit 23 it was ordered that Suit 23 is to be transferred and heard/tried together with Suit 22. [6] Effectively, by the above orders both Suit 31 and Suit 23 are to be transferred and heard/tried together with Suit 22 in this Court. Representation [7] Initially, all the Plaintiffs in Suits 22, 23 and 31 are represented by Messrs. Nazri Aziz Masura Mak & Tan whilst in all Suits 22, 23 and 31 the Defendants are represented by Messrs. Shearn Delamore & Co. The representation of the Plaintiffs and Defendants remains the same for Suits 22 and 23. However, the Plaintiff in Suit 31 was represented by Messrs. Lee & Koh vide Notice of Change of Solicitors (Enclosure 53 dated 15.6.2023) and thereafter represented by Messrs. S. Ravenesan vide Notice of Change of Solicitors (Enclosure 145 dated 22.1.2025). Defendant’s submissions (Enclosure 42 and 47) [8] The Defendant submits that although the application under Order 4 Rule 1 Rules of Court 2012 in respect of “consolidation of causes or matters” of suits is not identical to an Order for suits to be “heard/tried together” the principles underlying the two principle of law are similar. [9] The main objective of consolidation of cases is to save costs, time and effort and to make the conduct of several actions more convenient by treating S/N D/3cpa0BukywzZwnvtB6gg them as one action. The High Court in the case Federal Land Development Authority & Anor. v. Tan Sri Hj Mohd Isa bin Dato’ Hj Abdul Samad & Ors [2022] 7 MLJ 883 at p. 894 applied the legal principles and objectives in a consolidation operation in determining an application for suits to be “tried together” pursuant to Order 4 rule 1 ROC 2012. The relevant portion of the decision reads as follows: [18] The main objective of consolidation is to save costs, time and effort, and to make the conduct of several actions more convenient by treating them as one action (see the Court of Appeal decision in Osaka Resources Sdn. Bhd. & Ors. v Foo Holdings Sdn. Bhd. And another appeal [2014] 1 MLJ 461). The conditions in O 4 r 1 are to be read disjunctively such that satisfaction of any one of the conditions would suffice. [10] The High Court in the case of Kumpulan Emas Bhd v. Dato' Lim Teng Lew & Anor [2004] 2 MLJ 614 at p. 617 decided as follows: “What is the purpose of consolidation? [3] It is to save time and costs and is usually ordered when there appears to the court that there is 'some common question of law or fact bearing sufficient importance in proportion to the rest' of the subject matter of the actions so as 'to render it desirable that the whole should be disposed of at the same time'. S/N D/3cpa0BukywzZwnvtB6gg Plaintiff’s submissions (Enclosure 45 and 50) [11] The Plaintiff’s counsel (Messrs. Nazri Aziz Masura Mak & Tan) submits that the decision to consolidate, transfer or try matters separately depends on the Court’s discretion to ensure justice is served efficiently. [12] The Plaintiff submits that Enclosure 31 ought to be filed in Suit 23 and Suit 31 and not in Suit 22 as it was the Court in Suit 23 and Suit 31 that explicitly ordered Suit 23 and Suit 31 be heard and/or tried together with Suit 22 as reflected in the respective Court’s order dated 20.9.2022 (see para. supra) in Suit 31 and Court’s order dated 26.10.2022 (see para. 5 supra) in Suit 23. This application ought to fail based on this ground alone. [13] The Plaintiff submits that having Suits 23 and 31 transferred out from Suit 22 and further to be heard and tried before a new judge would require the new judge to start afresh, thus significantly delaying the process. Therefore, it is fair, expeditious and cost effective for all 3 suits to be heard together and disposed off concurrently. [14] This Court is the appropriate forum to hear all the 3 suits and the interests of justice are best served by hearing Suit 23 and Suit 31 together with Suit 22 as this will promote efficiency, consistency and fairness in the proceedings. S/N D/3cpa0BukywzZwnvtB6gg Analysis and Decision [15] At the onset of the oral submissions by parties, the Defendant’s counsel informed Court that by agreement between the Plaintiff’s counsel and the Defendant’s counsel, Suit 22 and Suit 23 are to be heard together after the disposal of Suit 31. In this regard, the Court is of the considered view that the Court may make the appropriate orders and directions to secure the just, expeditious and economical disposal of the action or proceedings including the manner in which the action or proceedings is to be conducted. (O. 34 r.

(u) Rules of Court 2012) The Plaintiffs in Suit 22, 23 and 31 are no longer represented by the same solicitors. [16] Where the Plaintiffs in the various actions are unable to agree on a common representation by a single firm of solicitors, consolidation (or in this case to be heard/tried together) may be refused. (see Kumpulan Emas (supra)) [17] When the Plaintiff in Suit 31 decided to change solicitors (Enclosure 145), thereby creating a situation where there is no longer common legal representation between the Plaintiffs in all the three suits, the Plaintiff in Suit 31 has effectively frustrated the Orders to have all the three suits to be heard/tried together. S/N D/3cpa0BukywzZwnvtB6gg [18] The High Court in the case of Ng Joo Soon @ Nga Ju Soon v. Devechem Holdings (M) Sdn Bhd And Ors [2010] 1 LNS 1677 at p. decided as follows: “To complicate matters, I was made to understand that different solicitors represent the parties in these two proceedings. Although coordination was always possible, it would obviously be difficult, time-consuming and not necessarily lead to a saving of costs. In fact, where there is no agreement on a common representation by a single firm of solicitors, consolidation may even be refused.” [19] Clearly, when an Order for suits to be heard together has been granted and if the suits are no longer suitable to be heard together, the Court is empowered to sever them to prevent any occurrence of injustice. In furtherance to this, the Court shall have regard to the overriding interest of justice and not only to the technical non-compliance with the Rules of Court where regard shall be to justice. (O. 1A ROC 2012). [20] Based on the aforesaid reasons, the Court hereby makes the following orders:

that Suit 31 is to be heard/tried separately from Suit 22;

that Suit 22 is to be heard/tried together with Suit 23;

no order as to costs. S/N D/3cpa0BukywzZwnvtB6gg Postscript [21] The Court originally fixed trial dates for all Suits 22, 23 and 31 to be heard together on 23 July, 30 and 31 July, 6 to 8 August 2025 (6 days). Consequently, pursuant to the Order of Court in para. 20, the Court now directs that Suit 22 and Suit 23 to be heard together and to proceed forthwith for trial on 6, 7 and 8 August 2025. Dated: 22 April 2025 Sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur COUNSEL Applicant/Defendant G Rajasingam (Tong Wei Hang and Ong Tze Xian with him) Messrs. Shearn Delamore & Co. Kuala Lumpur. Respondent/Plaintiff Mohammad Danial bin Hazizan Messrs. S Ravenesan Kuala Lumpur.