OO TIN FUAN v 1. ) LIM LEE CHING Guru Besar Sekolah Jenis Kebangsaan (Cina) Chin Woo Kuala Lumpur merangkap Setiausaha Lembaga Pengurus (WA-21NCvC-36-02/2021)

This is an application by the Defendants under Order 23 rule 1 and/or Order 23 rule 2 and/or Order 92 rule 4 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court. The reliefs sought by the Defendants are as follows:

the Plaintiff to pay the Attorney-General Chambers within 14 days costs of RM6,000.00 as ordered by the High Court (Justice Rohani binti Ismail) vide Kuala Lumpur High Court Originating Summons WA-24NCvC-2140-12/2017 Order dated 24.4.2018 as a pre-condition for the filing of any new action by the Plaintiff against the Defendants;

the Plaintiff to furnish within 14 days by payment into Court security for costs in the sum of RM30,000.00 or any amount deemed reasonable by the Court;

that all proceedings at the High Court be stayed pending the hearing of this application and the payment into Court by the Plaintiff of the security for costs sought; and

that the Writ and Statement of Claim be struck out in the event of default in payment of the security for costs by the Plaintiff.

The brief grounds for this application are as follows:

the financial status of the Plaintiff who remains as an undischarged bankrupt since 2.5.2024 and the failure of the Plaintiff to produce evidence of his ability to pay costs in the event so ordered by the Court;

the sanction dated 30.10.2024 issued by the Director General of Insolvency allowing the Plaintiff to continue with the present suit is premised on the condition that the trustee in bankruptcy would not be held liable for any costs if the Plaintiff is unsuccessful in the claim and is ordered to pay the Defendants’ costs. The Plaintiff is to bear the Defendants’ costs if the present suit is dismissed;

the merits of the defence impleaded by the Defendants;

the pre-condition imposed by the High Court by Order dated 24.4.2018 in Kuala Lumpur High Court Originating Summons WA-24NCvC-2140-12/2017 for the payment of costs not satisfied before the filing of the present suit by the Plaintiff;

the present suit is the third attempt by the Plaintiff seeking identical claim against the Defendants, where the previous claims were withdrawn and struck out by in different High Courts. The costs of RM30,000.00 is reasonable in the circumstances. S/N DyvfhTvtCk27Au8pgFXr0g Chronology of proceedings

For ease of reference, the relevant contemporaneous documents and dates can be gleaned from the table below: No. Documents Reference Date 1 Court of Appeal decision Encl. 31 pp. 1-7 28.2.2017 2 High Court WA-24NCvC- 2140-12/2017 Encl. 56 24.4.2018 3 High Court WA-21NCvC- 22-02/2020 Encl. 31 pp. 34,35 21.1.2021 5 Writ & Statement of Claim Encl. 1 & 2 27.2.2021 6 Defence Encl. 8 5.5.2021 7 Reply Encl. 9 24.5.2021 8 Notice of Application Encl. 41 7.2.2025 9 Trial 4 - 8.1.2027

The cause papers filed in relation to Encl. 41 are as follows:

Defendants’ Affidavit in Support of Megat Affandi Bin Datuk Wira Haji Ismail filed on 7.2.2025 (Encl. 42) and Reply Affidavit of filed on 21.3.2025 (Encl. 47);

Plaintiff’s Affidavit in Reply of Oo Tin Fuan filed on 4.3.2025 (Encl. 45);

Defendants’ Written Submissions filed on 6.5.2025 (Encl. 50), and Bundle of Authorities (Encl. 51); and

Plaintiff’s Written Submissions filed on 25.4.2025 (Encl. 48) and Reply Submissions filed on 19.5.2025 (Encl. 52).

The Submissions of the Defendants in a nutshell are as follows:

Merits of the Defence and self-serving conduct of the Plaintiff. (paras. 6 - 15) There is a prima facie sustainable defence put up by the Defendants. The pleaded case by the Plaintiff does not show a strong prima facie presumption that the Defendants would not be successful in their defence and that the pleaded Defence manifests the self-serving conduct of the Plaintiff which seriously casts doubt on the bona fide of the

No evidence of the Plaintiff’s ability to pay costs (paras. 16 - 23) S/N DyvfhTvtCk27Au8pgFXr0g The sanction dated 30.10.2024 issued by the Director General of Insolvency (Encl. 42) allowing the Plaintiff to continue with the present suit is premised on the express condition that the Plaintiff is to personally bear the Defendants’ costs if his present suit is dismissed by the Court. In the absence of any cogent evidence produced by the Plaintiff of his ability to pay costs, there is reason to believe that the Plaintiff would not be able to pay the Defendants’ costs in the event his claim is dismissed by the Court.

The Plaintiff submits that the application in Encl. 41 is a contemplated proceeding as this action which was fixed for hearing has been postponed and the hearing is fixed in 2027.

The Plaintiff further submits that the Defendants did not prove its claim for security for costs, proof of oppression and abuse of the Court’s process under Order 23 rules 1 and 2 of the ROC 2012.

The Submissions of the Plaintiff in a nutshell are as follows:

the Defendants claim for cost of RM6,000.00 was not established as the said costs under the Order dated 24.4.2018 was awarded only RM2,000.00 to the 3rd Defendant in this suit. The 1st and 2nd Defendants were not S/N DyvfhTvtCk27Au8pgFXr0g parties to the KL High Court Originating Summons No. WA- 24NCvC-2140-12/2017;

the Plaintiff have failed to prove any actual loss and therefore the claims for general damages is without legal basis and ought to be dismissed; and

the Plaintiff submits that the costs of RM30,000.00 is unreasonable and that the Defendants has not shown any facts or law for the said claim.

Security for costs of action (O. 23. r. 1)

Where, on the application of a Defendant to an action or other proceedings in the Court, it appears to the Court -

that the Plaintiff is ordinarily resident out of the jurisdiction;

that the Plaintiff (not being a Plaintiff who is suing in a representative capacity) is a nominal Plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the Defendant if ordered to do so;

subject to paragraph (2), that the Plaintiff’s address is not stated in the writ or Originating Summons or is incorrectly stated therein; or

that the Plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then, if, having regard to all the circumstances of the case, the Court thinks it just to do, it may order the Plaintiff to give such security for the Defendant’s costs of the action or other proceedings as it thinks just.

The Court shall not require a Plaintiff to give security by reason only of subparagraph (1) (c) if he satisfies the Court that the failure to state his address or the misstatement thereof was made innocently and without an intention to deceive.

The Court has the discretionary power to order Security for Costs. The Court may order security for costs pursuant to Order 23 rule 1 ROC 2012 ‘if, having regard to all the circumstances of the case, the Court thinks it just to do so’. These words have the desired effect of conferring upon the Court a real discretion to consider the circumstances of each case and to determine whether and to what extent a Plaintiff or the Defendant, as the case may be, be ordered to provide Security for Costs.

The High Court in the case of Wei Her Pte Ltd v. Ooi Teik Seng & Anor. [2021] 1 MLJU 147 at paragraph 5 decided as follows: “[5] It is not disputable that whilst O 23 r 1 sets out the situation under which Court would consider the grant of an application for security for costs, the key phraseology in that provision is ‘then, if having regard to all the circumstances of the case, the Court thinks it just to do’. By that phrase, this Court is granted with unperturbed discretionary power to allow an application for security for costs, having regard to all the circumstances of the case as the Court thinks just.” Discretionary power to order security for costs

The legal position with regard to security for costs empowered the Court to order the same if having regard to all circumstances of the case, the Court thinks it just to do so. These words have the effect of conferring upon the Court a real discretion and indeed the Court is bound by virtue thereof to consider the circumstances of each case and in the light thereof to determine whether and to what extent or what amount the Plaintiff (as in this case) may be ordered to provide Security for Costs. The High Court in the case of Faridah Begum bte Abdullah v. Dato' Michael Chong [1995] 2 MLJ 404 at page 408 referred with approval this statement of law adopted in the case of Kasturi Palm Products v. Palmex Industries Sdn. Bhd. [1986] 2 MLJ 310. Some indication of the relevant circumstances to be considered may be drawn from what was said by Lord Denning MR S/N DyvfhTvtCk27Au8pgFXr0g in the case of Sir Lindsay Parkinson & Co. Ltd. v. Triplan Ltd. [1973] 2 All ER 273 at pp. 285 and 286 as follows: “The court has a discretion which it will exercise considering all the cirumstances of the particular case. The court might also consider whether the application for security was being used oppressively – so as to try to stifle a genuine claim. It would also consider whether the company’s want of means has been brought about by any conduct of defendants, such as delay in payment or delay in doing their part of the work.”

In the case of Dato’ Richard Dilaan Morais v. Raam Kumar a/l M Suppiah [2024] MLJU 3801, the Defendant’s application is based on the Plaintiff’s status as an undischarged bankrupt and the potential financial prejudice that the Defendants may face if they successfully defend this suit but are unable to recover their costs. The central issue for determination in that case was whether the Court can order security for cost against a bankrupt Plaintiff, bearing in mind that being in the status of bankruptcy alone does not warrant such an order. The Court decided in paragraph 6 as follows: “The exercise of discretion is further complimented by Order 92 rule 4 of ROC which generally vests the court with inherent power to do justice or prevent injustice to the parties.”

The Security for Costs may be ordered for the past as well as for the future costs that may be incurred. (Low Chee Yan v. Loh Kong S/N DyvfhTvtCk27Au8pgFXr0g Yew [1917] 2 FMSLR 176, Gnanamuthu v. Muthu Chetty [1926] 6 FMSLR 73) If a Plaintiff who has been ordered by the Court to give security for costs fails to do so, the action may be stayed until security is given, or the action may be struck off (as in the instant case) or the action may be dismissed for want of prosecution (S v S Muthuraman Chettiar Etc v. E Kong Guan [1934] MLJ 174 and Selco (Singapore) Ltd v. Jean Del-porte [1969] 2 MLJ 189).

I have read and perused the Affidavits, Written Submissions and Authorities filed by the Defendants and the Plaintiff. I have also considered the Oral Submissions and Arguments forwarded and articulated by the Senior Federal Counsel and the Plaintiff’s Counsel.

By letter dated 30.10.2024 (filed in Encl. 38) in the matter Bankruptcy No. BA-29NCC-2020-10/2021 (Oo Tin Fuan, IC No. 560512-01- 5675/4972476) application for sanction under Section 38 (1) (a) Insolvency Act 1967 (Act 360) the Director General of Insolvency granted sanction to continue the action for Civil No. WA-21NCvC-36- 02/2021 as follows:

Permohonan dan kelulusan sanksi ini hanya perlu dikeluarkan sekali sahaja sepanjang kes berlangsung dan S/N DyvfhTvtCk27Au8pgFXr0g sanksi yang dikeluarkan ini berkuat kuasa bermula dari Tarikh permohonan bankrap;

Ketua Pengarah Insolvensi Malaysia tidak akan bertanggungjawab dan tidak boleh dipertanggung-jawabkan sama sekali atas apa-apa kegagalan, kerugian dan apa-apa kos yang terlibat atau yang dikenakan oleh mana-mana pihak yang terlibat dalam guaman dan/atau yang berbangkit daripada guaman tersebut;

Sekiranya keputusan Mahkamah dalam tindakan guaman tersebut memihak kepada tuan, apa-apa wang, pampasan dan faedah yang diterima oleh tuan hendaklah diserahkan kepada Ketua Pengarah Insolvensi Malaysia untuk dimasukkan ke dalam estet kebankrapan tuan bagi faedah pemiutang-pemiutang;

Sebarang pertukaran pelantikan peguam dan perkembangan kes hendaklah dimaklumkan ke Jabatan ini dari semasa kesemasa; dan

Jika terdapat sebarang perlanggaran syarat, kelulusan sanksi ini akan terbatal tanpa sebarang notis.

The sanction dated 30.10.2024 issued by the Director General of Insolvency is reflected in the Affidavit in Support of Megat Affandi Bin Datuk Wira Haji Ismail holding the position as Pengarah Jabatan S/N DyvfhTvtCk27Au8pgFXr0g Pendidikan Wilayah Persekutuan Kuala Lumpur (3rd Defendant) exhibited as “JPWP-2” allowing the Plaintiff to continue with the present suit is premised on the express condition that the Plaintiff is to personally bear the Defendants’ costs if his present suit is dismissed by the Court.

The Court may order the Plaintiff to give such security for the Defendant’s costs of the action or other proceedings as it thinks just. In this regard, the Court will now deal with the following:

to decide whether to order Security for Costs;

(ii) to consider the circumstances of the case; and

(iii) to determine the quantum to be imposed for the Security for Costs. Financial status of the Plaintiff

In the intitulement, it is clear that the Plaintiff is suing the Defendants in his capacity as a member cum Chairman of the Board of Governors Sekolah Jenis Kebangsaan (Cina) Chin Woo. The finantcial status of the Plaintiff as an undischarged bankrupt is a disability and essentially disqualify the Plaintiff to continue to hold any position in the Board of Governors.

In that respect the main reliefs sought by the Plaintiff for the extension of the Chairmanship of the Board of Governors and the prohibitory order against the holding of any Annual General Meetings are devoid of merits. Needless to say, this is a fit and proper case for this Court to exercise its discretionary powers to order Security for Costs as the Courts thinks just and on such terms as the Court may direct.

The sanction obtained from the Director-General of Insolvency must necessarily mean that the Plaintiff is not prevented from proceeding with this suit which is subjected to the Defendants’ defence which includes the Defendants’ right under Order 23 of ROC 2021 for Security for Costs. The Court in the case of Faridah Begum (supra) at p. 407 decided as follows: “I take it that O. 23 applies to a bankrupt in the same way as it applies to other litigants. But as established by several authorities, bankruptcy should not be a factor that should prompt the court in making such an order. For those reasons, I hold that the court is not precluded, by reason of the plaintiff’s bankruptcy from ordering the plaintiff to furnish security for costs if, in all circumstances of the case, the court finds it just so to do.”

The Defendants had pleaded in the Defence (Encl. 8) that under Clauses 1.5.1 and 1.5.2 of the Constitution of the Board of Governors of Chin Woo School and the Education Act 1966 (Act 550) and the S/N DyvfhTvtCk27Au8pgFXr0g regulations that while Chin Woo School may seek assistance from the Government, the principal financial dutly lies with the Board of Governors to provide funding for the infrastructure development, upkeep and maintenance of the school.

The Defence further states that the minutes of the Board’s meeting dated 28.1.2013 and 2.5.2013 (Encl. 27) recorded that the Plaintiff had previously claimed for the same reimbursement from the said Board and the claim was refused by the Board on the ground that the personal spending was not authorised by the Board and the Board expressly directed the Plaintiff to cease any purported works on the land adjacent to the school because the Board did not have the financial resources to undertake any development on the said land belonging to the local authority (Dewan Bandaraya Kuala Lumpur).

According to the Defence, the 1st Defendant was not involved with Chin Woo school before 3.8.2020. The 1st Defendant was the present headmistress of the school from the even date. There is no express pleaded cause of action against the 1st Defendant in the Writ and Statement of Claim.

The 2nd Defendant was the previous headmistress from 2018. She was not the headmistress of the school between 2015 and 2017 where the factional rivalries took place between members of Board of Governor which culminated in the Court of Appeal Order dated 28.2.2017.

The Court is inclined to agree with the Defendants’ submission that there is a prima facie sustainable defence by the Defendants. The pleaded case by the Plaintiff does not show a strong prima facie presumption that the Defendants would not be successful in their defence. The pleaded Defence manifests the self-serving conduct of the Plaintiff which seriously casts doubt on the bona fide of the claim.

Be that as it may, this application was based not merely on the Plaintiff’s bankruptcy but also on the Defendants’ averment that there exist a valid defence against the Plaintiff’s claim and that there is reasonably good prospect of success in this suit.

The onus is upon the Plaintiff to show sufficient materials to the Court as to why order for security for costs ought not to be made against him. (see the case of Tan Bon Kiat v. Lau Kok Guan @ Low Kok Guan & Ors. [2020] MLJU 1434 para. 21.)

Based on the above analysis, the Plaintiff’s submissions that the Defendants did not prove its claim for security for costs, proof of oppression and abuse of the Court’s process under Order 23 rules 1 and 2 of the ROC 2012 was devoid of merits.

In the case of Doree Industries (M) Sdn. Bhd. & Ors v. Sri Ram & Co. [2007] 1 MLJ 722, the Court decided as follows: S/N DyvfhTvtCk27Au8pgFXr0g “Once it is established that it will be unable to pay the costs, the onus is on the Plaintiff to satisfy the Court why security for costs should not be ordered (see Gula Perak Bhd. v Agri-Products

(M) Sdn. Bhd. [1989] 1 MLJ 422). In the instant case, it is established and admitted that the first plaintiff is in liquidation. Accordingly, is is for the plaintiff to satisfy the court why security for costs should not be ordered. The affidavit in reply was filed by the former Managing Director of the plaintiff who is also named as the second plaintiff in the case. My perusal of the said affidavit (encl. 126) does not indicate sufficient grounds to satisfy the court why security for costs should not be ordered. Further, I do not see how an application for security for costs in the instant case could be an abuse of the court’s process. The plaintiff has failed to give sufficient evidence to show how it would be prejudiced by the said application. There is not an iota of evidence that can tilt the scale in their favour and there is also nothing in the affidavit to indicate that the plaintiff would as a result of this order suffer injustice or that it would stifle its claim or that the order would be oppressive. Worse still, there is nothing in the affidavit in reply to show its ability to pay the costs in the event it was to fail in its claim against the defendants.”

In the Kuala Lumpur High Court Originating Summons No. WA- 21NCvC-36-02/2021 Order dated 24.4.2018 (Encl. 56), by consent S/N DyvfhTvtCk27Au8pgFXr0g the matter by the Plaintiffs (including Oo Tin Fuan) was withdrawn with liberty to refile and costs to be paid as follows: “(i) kos sebanyak RM2,000.00 dibayar oleh Plaintif-Plaintif kepada setiap Defendan Pertama, Kedua dan Kelima secara berasingan di atas nama Jabatan Peguam Negara Putrajaya; dan

(ii) kos sebanyak RM2,000.00 dibayar oleh Plaintif-Plaintif kepada setiap Defendan Ketiga dan Keempat atas nama Tetuan CM Wong & Khor Peguamcara bagi Defendan Ketiga dan Keempat; dan

(iii) kos di atas hendaklah dibayar kepada semua Defendan sebelum tindakan baru difailkan.”

In the Kuala Lumpur High Court Civil No. WA-21NCvC-22-02/2020, the Court made the following order on 21.1.2021 (Encl. 31 p. 34): “maka adalah diperintahkan bahawa Writ Saman bertarikh 25.2.2020 dan Pernyataan Tuntutan Terpinda bertarikh 20.7.2020 dibatalkan dengan kebebasan untuk memfailkan semula tanpa Perintah terhadap kos.”

I am of the considered view that the pre-condition imposed by the High Court by Order dated 24.4.2018 in Kuala Lumpur High Court Originating Summons WA-24NCvC-2140-12/2017 for the payment of S/N DyvfhTvtCk27Au8pgFXr0g costs was never satisfied before the filing of the present suit by the Plaintiff and that the present suit is the third attempt by the Plaintiff seeking identical claim against the Defendants, where the previous claims were withdrawn and struck out. No evidence of the Plaintiff’s ability to pay costs

The Court is inclined to agree with the Defendants’submissions that there is reason to believe that the Plaintiff would not be able to pay the Defendants’ costs in the event his claim is dismissed by the Court in the absence of any concrete evidence.

This is further fortified by the sanction dated 30.10.2024 issued by the Director General of Insolvency (Encl. 42) allowing the Plaintiff to continue with the present suit premised on the express condition that the Plaintiff is to personally bear the Defendants’ costs if his present suit is dismissed by the Court.

The Defendants had provided reasonable grounds to believe that the Plaintiff would be unable to pay his costs and that there was clearly absence of evidence in the Plaintiff’s Affidavit to demonstrate his ability to pay the costs if ordered against him.

The Court is mindful that the mere bankruptcy or impecuniosity of the Plaintiff is not sufficient ground for security for costs to be ordered, nevertheless the Court may order security for costs pursuant to Order S/N DyvfhTvtCk27Au8pgFXr0g 23 rule 1 ROC 2012 if, having regard to all the circumstances of the case, the Court thinks it just to do so.

In the case of Dato’ Richard Dilaan Morais (supra) the Court decided in paras. 18 and 19 that “Considering the Plaintiff’s financial incapacity and undischarged bankruptcy status, there is a real risk of prejudice to the defendants if security for costs is not ordered. This court must ensure that the order for security for cost is based purely on the merits of the application and avoids the perception of being used as a collateral means to stifle the plaintiff’s right to legal recourse through excessively high sum.”

Encl. 41 is hereby allowed as follows:

that the Plaintiff to pay the Attorney-General Chambers within 30 days from date of decision costs of RM6,000.00 pertaining to the Kuala Lumpur High Court Originating Summons WA- 24NCvC-2140-12/2017 Order dated 24.4.2018 as a pre-condition for the filing of any new action by the Plaintiff against the Defendants;

that the Plaintiff to furnish payment into Court security for costs in the sum of RM20,000.00 within 30 days from date of decision, which is fair and reasonable; and

that the Writ and Statement of Claim be struck out in the event of default in payment of the security for costs by the Plaintiff preceding the commencement of this trial.

The prayer in para. (c) of Encl. 41 that all proceedings at the High Court be stayed pending the hearing of this application and the payment into Court by the Plaintiff of the security for costs sought to is deemed academic.

Based on the foregoing reasons, the Defendants’ Application in Encl. 41 is hereby allowed as reflected in paragraph 39 above. I make no order as to costs. Dated: 7 November 2025 sgd ………………………………………….. (EDDIE YEO SOON CHYE) Judicial Commissioner High Court of Malaya Kuala Lumpur S/N DyvfhTvtCk27Au8pgFXr0g For the Plaintiff: Guna Perumal Messrs. Guna Perumal & Associates Kuala Lumpur. For the Defendants: SFC Liew Horng Bin and FC Azmi Aman Quttu Civil Division Attorney General Chambers Putrajaya. S/N DyvfhTvtCk27Au8pgFXr0g