Ng King Kwi @ Wang King Kwi v Sks Premium Sdn. Bhd. (JA-22NCvC-36-03/2026)

Enclosure 6 is the Defendant’s application for an order that the Plaintiff furnish security for the Defendant’s costs in the sum of RM100,000.00 with a stay of proceedings pending payment and consequential orders. The Defendant’s application is founded on the contention that the Plaintiff is ordinarily resident in Singapore and has no undisputed asset within the jurisdiction, such that any costs order obtained by the Defendant could be enforced only through separate and non-automatic proceedings abroad. The Plaintiff’s objection is that, as a solvent Malaysian citizen long resident at a fixed address and suing in respect of immovable property situated within the jurisdiction, his residence abroad alone does not make it just to order security, particularly where a reciprocal enforcement regime exists between Malaysia and Singapore.

The Plaintiff claims to be the beneficial owner of an office unit known as Unit No. 9.06, Level 9, Menara SKS (formerly Pacific Mall), Jalan Storey, Bukit Senyum, 80300 Johor Bahru (“Unit 9.06”). The Defendant occupies Unit 9.06 and operates a hotel business there. The Plaintiff’s action is, in substance, for the recovery of vacant possession of Unit 9.06 and for damages or mesne profits for unlawful occupation to be assessed, together with interest and costs. It is not a liquidated claim.

It is not in dispute and the Plaintiff expressly admits, that he is and has been ordinarily resident at 55B, Lorong Ong Lye, Singapore 536433 since about 1985, a period exceeding forty years. The Plaintiff is a Malaysian citizen and a retired medical specialist.

The Defendant’s application is under Order 23 rule 1(1)(a), Order 92 rule 4 and Order 1A of the Rules of Court 2012 (“ROC 2012”) and the inherent jurisdiction of the Court.

An application for security for costs involves a two-stage inquiry. First, whether the applicant has established at least one of the limbs under Order 23 rule 1(1) ROC 2012. Secondly, if so, whether in all the circumstances of the case it is just to order security.

The grant of security does not follow as of right merely because a limb is satisfied. The Court retains a discretion to be exercised on all the relevant circumstances. [See : Kensington Group Management Limited v. Dato Chew Hun Seng [2025] MLRHU 592].

The Defendant's authorities include older statements to the effect that, where a plaintiff is resident abroad and has no assets within the jurisdiction, the discretion is almost invariably exercised in favour of ordering security. [See : Shaik Ali v Shaik Mohamed [1963] 1 MLJ 300]. I do not approach the matter in that way. As Kasturi Palm Products v. Palmex Industries Sdn Bhd [1985] 1 LNS 149 makes clear, it is no longer an inflexible or rigid rule that a plaintiff resident abroad must provide security. The question in every case is whether, having regard to all the circumstances, it is just to order it. Stage one : the threshold

The Defendant relies on Order 23 rule 1(1)(a) ROC 2012, namely that the Plaintiff is ordinarily resident out of the jurisdiction. On the Plaintiff’s own admission of more than forty years’ continuous residence in Singapore, the threshold is plainly met. I did not understand the Plaintiff seriously to contend otherwise; his opposition was directed at the exercise of discretion.

The Plaintiff’s Malaysian citizenship does not displace the threshold. Citizenship is not the determinant under Order 23 rule 1(1)(a) ROC

Ordinary residence is, and that is a question of fact. [See : Million Suncity Sdn Bhd & yang lain lwn. Law Ban Seng & Satu Lagi [2026] MLRHU 788; Aplasamy Pothiayah & Anor v. Krishnamurthy Pothiayah & Anor [1998] 7 MLRH 913].

Hence, citizenship and the Plaintiff’s connection to this jurisdiction remain relevant, but they are matters for the discretionary stage. Stage two : whether it is just to order security

I considered the following circumstances to be material.

No undisputed asset within the jurisdiction.

The purpose of ordering security against a plaintiff resident out of the jurisdiction is to ensure that a successful defendant will have a fund within the jurisdiction against which a costs order may be enforced : [See : Lim Sim Ee v. DSI Northern Source Sdn Bhd & Ors [2023] MLRHU 1976]. The only asset in Malaysia to which the Plaintiff points is Unit 9.06. But Unit 9.06 is the very subject matter of this action. An asset that is the subject matter of the suit cannot be treated as available security, because security must be available irrespective of the outcome of the trial. [See : Mechanalysis Sdn Bhd (In Liquidation) v. Appraisal Property Management Sdn Bhd [2017] 3 MLRH 98]. The Plaintiff has not shown any other undisputed asset within the jurisdiction.

Enforcement against the Plaintiff is not automatic

The Plaintiff submitted that, because a reciprocal regime exists between Malaysia and Singapore, a costs order could be enforced against him in Singapore and security is therefore unnecessary. He relied on Aw Peck Luan & Anor v. Kau Peck Guat [2022] 1 LNS 816 and Pacific Bunkers Pte Ltd v. Owners of the ships or vessels "GENIKI SARAWAK" (IMO NO: 9385386) and "GENIKI JOHOR" (IMO NO: 9291054) & Another Case [2015] 1 LNS 109. I accept that a reciprocal mechanism exists. Singapore is a reciprocating country for the purposes of the Reciprocal Enforcement of Judgments Act 1958 [Act 99]. It is named in the First Schedule to the Act and the authorities before me proceed on that footing. [See : Zhang Jing v. Ng Fong Yong [2013] MLRHU 993; Lim Sim Ee v. DSI Northern Source Sdn Bhd & Ors [2023] MLRHU 1976]. I therefore accept, and the Plaintiff is right to say, that a costs order of this Court could in principle be registered and enforced against him in Singapore. That, however, is not the end of the matter. As Lim Sim Ee itself makes clear, the fact that Singapore is a listed reciprocating country does not make enforcement automatic. The existence of the regime is not, of itself, a ground for refusing security.

Enforcement abroad would require the Defendant to undertake a separate, two-stage process of registration and then enforcement, each capable of being resisted, with the attendant cost and delay. [See : JSS Tobacco Ltd v. JSS Tobacco London Sdn Bhd & Anor [2023] MLRHU 994]. I did not understand the Plaintiff to dispute that some such process would be required. His point was that it was practicable rather than impossible. That a process is practicable does not answer the additional burden and risk it places on a successful local defendant.

I add that the Defendant's supporting affidavit averred that Singapore is not bound by Act 99. That assertion was not pursued in submissions and is in any event incorrect, for the reason given above : Singapore is a listed reciprocating country under the First Schedule to the Act. In submissions, the Defendant rightly relied instead on the principle that enforcement under the regime is not automatic. I have therefore placed no weight on the averment and my conclusion rests on that settled principle.

The authorities relied on by the Plaintiff are distinguishable

The Court in Aw Peck Luan and Pacific Bunkers confirm that a reciprocal route exists. They do not hold that its existence bars an order for security. As those decisions themselves recognise and consistent with Kasturi Palm Products v. Palmex Industries Sdn Bhd [1985] 1 LNS 149, the question remains one of discretion on all the circumstances. That cuts both ways. Just as the older approach in Shaik Ali does not compel an order, the Plaintiff's authorities do not preclude one. An exercise of discretion on particular facts is authority only for those facts and the weight to be given to residence, citizenship, solvency and the practicalities of enforcement falls to be assessed on the circumstances of this case.

The Plaintiff’s solvency

The Plaintiff relies on bank statements evidencing funds exceeding SGD 3 million. I accept that the Plaintiff is solvent and able to meet a costs order. But limb (a) is concerned with residence out of the jurisdiction, not impecuniosity. For the same reason, limb (a) does not require the Defendant to prove that the Plaintiff will abscond or dissipate his assets. The Plaintiff's submission that there is no evidence of any such risk does not meet the ground relied on, namely his ordinary residence outside the jurisdiction and the resulting absence of a local fund, rather than any apprehended misconduct on his part.

The Plaintiff’s solvency abroad does not provide the Defendant with a fund within this jurisdiction against which a costs order may be enforced without resort to foreign proceedings. It therefore mitigates, but does not remove, the very burden that security is intended to address. I have given it weight and it is one of the reasons I have moderated the quantum, but it does not make it unjust to order security.

The merits

Both parties addressed the merits of the underlying claim. The likelihood of success in the action is not a prescribed factor in an application for security for costs, and I have not taken it into account. [See : BM City Realty & Construction Sdn Bhd v. Merger Insight Builders Sdn Bhd & Anor [2024] MLRHU 1289].

The Plaintiff submitted that this is not a genuine application for security but a device to stifle a meritorious claim. I do not accept that characterisation. An application under Order 23 does not become oppressive merely because it is directed at a plaintiff who has an arguable claim. The rule exists precisely so that a defendant compelled to meet such a claim is not left without recourse for its costs. The Defendant's supporting affidavit states that the purpose of the application is to avoid the hardship of having to recover costs abroad and there is nothing in the material to suggest that it was brought for a collateral purpose or to shut the Plaintiff out. The Plaintiff's protection against oppression lies not in refusing security altogether, but in ensuring that the sum ordered is proportionate and does not stifle a genuine claim, and in the form of the consequential orders. I have addressed both matters below.

Weighing these matters, I am satisfied that it is just to order security. The Plaintiff is a resident outside the jurisdiction. He has no undisputed assets within it. Enforcement of any costs order against him would require the Defendant to pursue a separate, non-automatic process abroad. His citizenship, long-standing residence and solvency are real countervailing factors, but they go to the weight and amount of security rather than to entitlement.

Quantum

The Defendant sought RM100,000.00. It is trite that the amount of security must be just and proportionate and not exorbitant. [See : Wei Her Pte Ltd v. Ooi Teik Seng & Anor [2021] MLRHU 107]. Security is intended to provide a reasonable measure of protection for the party-and-party costs a successful defendant may have difficulty recovering; it is not a complete indemnity, nor is it to be fixed at a level that stifles a genuine claim.

I was not able to support the full sum of RM100,000.00 on the material before me. The Defendant provided no breakdown of anticipated costs, no estimate of the length of trial and no indication of the number of witnesses. The claim is unliquidated, so the sum sought cannot be measured against any pleaded value. The Defendant’s reliance on a “thirty-year history” also sits uneasily with the pleaded cause of action, which is a continuing trespass and a claim for possession and damages to be assessed, rather than an accounting over three decades.

At the same time, the action is not a simple one. It will proceed to a full trial in which the Plaintiff’s asserted beneficial title will have to be established through a chain of documents extending over many years, which include the sale and purchase agreement of 1995, the loan and assignment arrangements, the deed of receipt and reassignment of 2000, the chargee’s order of 2003 and the consent judgment of 2015, together with the factual dispute as to occupation. Preparing for and defending such a trial will involve documentary proof and witnesses and will not be inexpensive.

Balancing the genuine complexity of the matter against the absence of any costs breakdown, the unliquidated nature of the claim and the Plaintiff’s demonstrated solvency, I considered RM80,000.00 to be a reasonable and proportionate sum. It is neither exorbitant nor illusory, and it reflects the additional and reasonably anticipated party-and-party costs that the Defendant would face difficulty recovering by reason of the Plaintiff’s residence and the absence of a local fund. Consequential orders

A stay of proceedings pending the furnishing of security is the appropriate consequential order, its purpose being to secure compliance with the condition and to avoid the wasted costs of a trial proceeding before the issue of security is resolved. [See : CMS Energy Sdn Bhd v. Poscon Corporation [2009] 7 MLRH 840; Standard Confectionery Sdn Bhd & Anor v. Amanah Raya Berhad & Ors [2015] 5 MLRH 757].

I declined, however, to make an order for immediate striking out in default. An order striking out the action automatically on default, coupled with security, would risk shutting out a citizen’s claim concerning immovable property within this jurisdiction. The just course is to stay the action pending compliance and to reserve to the Defendant liberty to apply to strike out only in the event of continued default, with general liberty to apply.

I have not overlooked the Plaintiff's submission that a stay operates to his prejudice, in that it allows the Defendant to remain in occupation of the very unit in dispute while the action is held up. The concern is a real one, but it is answered by the limited period involved. The security is to be furnished within thirty days and the stay lifts on compliance. The Plaintiff therefore holds the key to resuming the action without delay. Any continuing occupation in the meantime is a matter that sounds in the mesne profits and damages the Plaintiff already claims and is not a reason to refuse security.

I made the following orders –

The Plaintiff shall, within thirty (30) days of the date of this order, furnish security for the Defendant’s costs in the sum of RM80,000.00 (Ringgit Malaysia Eighty Thousand only), by way of a bank draft in favour of the Registrar of the High Court of Malaya at Johor Bahru, or by payment into Court, to be held pending the final disposal of this action;

all further proceedings in this action are stayed until the security in paragraph (a) is furnished;

in the event the Plaintiff fails to furnish the security within the time ordered (or any extension granted by the Court), the Defendant is at liberty to apply to strike out the action;

liberty to apply; and

costs of this application are fixed at RM8,000.00, subject to the allocatur. Dated : 8 June 2026 -signed- (DR NORADURA BINTI HAMZAH) Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Plaintiff : : Simon Tay Lai Eng Messrs. Tay L.E. & Co. Counsel for the Defendant : : Vinodsagaran a/l Gunasakaren together with Rashmeet Kaur a/p Terlok Singh