Ponnusamy A/L Ramasamy v Kalidas A/L Komarawelo (PA-22NCvC-178-09/2020)

Three of the six suits filed were registered in my Court: Penang High Court OCVC2, and the remaining three suits were registered in Justice Azizan Arshad’s Court: Penang High Court OCVC3. This suit— PA-22NCvC-178-09/2020 (Suit 178)—is one of the three suits registered in my Court (OCVC2). 01/04/2024 17:14:48 PA-22NCvC-178-09/2020 Kand. 50

After three and a half years (in March 2024), P now files an Application in this Suit 178 for an Order to transfer, together with the other two suits registered in my Court, to Justice Azizan Arshad’s Court (OCVC3), to be heard and determined by him “one after the other” (citing the words of the prayer in P’s transfer application).

Should the Application in this Suit 178 be allowed i.e. this Suit 178 be transferred to OCVC3 to be heard and determined by Justice Azizan Arshad? THE SIX PERTINENT SUITS [5] The three pertinent suits registered in my Court (OCVC2) are—

this Suit 178;

suit PA-22NCVC-161-09/2020; and

suit PA-22NCVC-176-09/2020. [6] The three pertinent suits registered in Justice Azizan’s Court (OCVC3) are—

suit PA-22NCVC-174-09/2020 (Suit 174);

suit PA-22NCVC-175-09/2020 (Suit 175); and

suit PA-22NCVC-177-09/2020 (Suit 177). THE PLAINTIFF’S TRANSFER APPLICATION [7] P makes this transfer application under Order 4 Rule 1(1) and Order 57 Rule 1(1) of the Rules Of Court 2012 (ROC). Order 4 Rule 1(1) and Order 57 Rule 1(1) are set out below so that their very terms can be reviewed and considered. [8] Order 4 Rule 1(1) provides that— Order 4. Consolidation of proceedings Consolidation of causes or matters (O. 4, r. 1)

(1) Where two or more causes or matters are pending, and if it appears to the Court that—

some common question of law or fact arises in both or all of them;

the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

for some other reason it is desirable to make an order under this rule, the Court may order the causes or matters to be consolidated on such terms as it thinks just or may order the causes or matters to be tried at the same time or one immediately after another or may order any of the causes or matters to be stayed until after the determination of any other of the causes or matters. [emphasis added] [9] The requirement under Order 4 Rule 1(1) that is applicable for P’s transfer application is that there is some reason that makes it desirable to grant the Order to have all six suits tried immediately one after the other. [10] Order 57 Rule 1(1) provides that— Order 57. Transfer of proceedings Transfer of proceedings to another Court (O. 57, r. 1)

(1) Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Court. [emphasis added] [11] The requirement under Order 57 rule 1(1) that is applicable here is that I must be satisfied that this Suit 178 is more conveniently or fairly tried in Justice Azizan’s Court, instead of mine. GROUNDS FOR PLAINTIFF’S TRANSFER APPLICATION [12] The grounds presented for P’s transfer application are that—

all six suits have the same plaintiff and the same defendant i.e. all six suits are by P against D;

all six suits are about the non-payment for legal work done and services rendered, which means that the issues in all six suits are the same;

the transfer as prayed for—that the three suits in my Court: OCVC2 be transferred to be heard one after the other with the three suits in Justice Azizan’s Court: OCVC3—will achieve the benefit of saving time and costs. [13] It is noteworthy that D does not oppose P’s transfer application. D has not filed any affidavit to oppose P’s application. But just because P’s transfer application is unopposed does not mean that I must necessarily allow the application, or that the fact that D does not oppose P’s application should bear upon my consideration of the requirements that I need to be satisfied with, to grant the Order sought. DECISION [14] Although all six suits are filed by P against D, and although all six suits are about the alleged non-payment of Invoices for work done and services rendered, I am of the view that this Suit 178 should not be transferred to Justice Azizan’s Court (OCVC3) to be tried “one immediately after another”, together with the other three OCVC3 Suits 174, 175 and 177. These are my reasons—

P chose to file six separate suits, instead of one suit for all the Invoices that he issued to D, which he alleges are not paid. P should be prepared to have six separate trials for the six separate suits filed, even if the suits are in different Courts.

This transfer application is not an application to consolidate all six suits so that all the suits are heard as one suit. This transfer application is an application to transfer this Suit 178 to another Court to be heard one immediately after the other in the same Court. I do not see how there would be savings of time and costs. Even if there are (savings of time and costs), I do not see how there would be substantive savings of time and costs.

Also, any savings of time and costs must be weighed against the other requirements that I must be satisfied with if I am to grant the Order to transfer, such as—this Suit 178 must be “more conveniently and fairly tried” in Justice Azizan’s Court, rather than mine.

Justice Azizan has fixed Suits 174, 175 and 177 for trial a few weeks away in April 2024. But this Suit 178 before me is still in the midst of pre-trial directions. The parties have yet to completely comply with my pre-trial directions to be ready for trial. If this Suit 178 is transferred to Justice Azizan’s Court, it will very likely inconvenience Justice Azizan, to have all six suits tried one immediately after the other. Justice Azizan’s three suits—Suits 174, 175 and 177—are ready for trial, but this Suit 178, and the other two suits registered in my Court, are not. A transfer of this Suit 178 (with or without the other two suits in my Court) may jeopardise the commencement of the Suits 175, 177 and 177 trials. In this sense, a transfer may not save time and costs. And, a transfer will certainly not be more convenient for OCVC3 and its presiding Judge: Justice Azizan.

Further, P has waited, in my view, too long to file this transfer application. P could have filed for the transfers right after the close of pleadings. That would have brought all six suits together, to be case-managed together at the early stages of the proceedings. The suits could have progressed to trial together. But here, P and to a large extent D, have permitted all six suits to progress at different rates, to different stages, such that I am of the view that it is not more convenient, nor will it save time and cost, to have all six suits to be tried in one Court one-after-the-other. CONCLUSION [15] For these reasons, I dismiss P’s transfer application with no Order as to costs, since D does not object to the application and has filed no affidavits against it. Dated: 1 April 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Plaintiff: M. Kirubanandan [Messrs. Kiru & Partners (Pulau Pinang)] For the Defendant: N. Ahilan [Messrs. N. Ahilan & Associates (Pulau Pinang)] Legislation referred to:

Order 4 Rule 1(1) and Order 57 Rule 1(1) of the Rules of Court 2012.