Pua Kok Hong v Puah Choon Wei (AA-22NCvC-105-12/2023)

Civil jurisdiction—general 85

Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where—

the cause of action arose;

the defendant or one of several defendants 90 resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred; or

any land the ownership of which is disputed is situated, 95 within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.

Without prejudice to the generality of subsection 100

(1), the High Court shall have such jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as may be vested in it by any written law in force within its local jurisdiction. 105 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 110 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. 115

Before making any order to transfer any proceedings from-

the High Court to another High Court of co-ordinate jurisdiction; 120 the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or Subordinate Court which shall hear the case is 125 located at or nearest to the place where-

(A) the cause of action arose;

(B) the defendant, or one of the several defendants, resides or has his place of 130 business;

(C) the facts on which the proceedings are based exist or are alleged to have occurred;

(D) the land the ownership of which is disputed is situated; or

(E) for other reasons it is desirable in the 135 interests of justice that the proceedings should be transferred” 140 [7] An application under Order 57 of the Rules of Court 2012, the High Court Judge must consider several factors before transferring proceedings to another High Court of co-ordinate jurisdiction. These factors include where the cause of action arose, where the defendant resides or has a place of business, where the facts of the 145 case exist or are alleged to have occurred, the location of disputed land, and any other reasons that make the transfer desirable in the interests of justice. These considerations ensure that the transfer serves the convenience and fairness for all parties involved. 150 [8] In Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268; [1987] 2 MLRH 453; Lim Beng Choon J held that: “a High Court located at Penang or Alor Setar is but a branch of the High Court in Malaya and each branch of the High Court in Malaya located in any state has concurrent 155 jurisdiction to entertain any civil proceedings regardless of whether the cause of action arose in another state.” [9] In Siti Nur Aishah bt Ishak v Golden Plus Holdings Bhd [2017] 3 MLJ 701; [2017] 8 CLJ 272, it was decided that the four conditions 160 under Order 57 of the Rules of Court 2012 are read disjunctively, meaning that as long as any one of these conditions is met, the High Court has jurisdiction or is competent to try the civil proceedings. This ensures that the case can be heard in a court that meets at least one relevant jurisdictional criterion, providing flexibility and 165 fairness in determining the appropriate forum. [10] In Matchplan (M) Sdn Bhd & Anor v William D Sinrich & Anor [2004] 2 MLJ 424; [2004] 1 CLJ 810, the Court of Appeal, through the judgment of Gopal Sri Ram JCA, stated that the Malaysian High 170 Court is seized with jurisdiction over a dispute if the defendant is served with the writ. This proposition is affirmed by the Federal Court and further confirmed in Petrodar Operating Co Ltd v Nam Fatt Corp Bhd (in liquidation) & Anor [2014] 6 MLJ 189; [2014] 1 CLJ 18. 175 [11] In R Ramani a/l M Ramalingam v Deluxe Exclusive Lounge Sdn Bhd [2017] 8 MLJ 302; [2018] 5 CLJ 236, Wong Kian Kheong JC stated that Order 57 Rule 1(1) of the Rules of Court provides the court with discretionary power to transfer cases. This discretion is 180 indicated by the word "may" in the rule. His Lordship said that to exercise this power, two conditions must be met: firstly, the court must consider the four conditions listed in Order 57 Rule 1(4)(A)-

(E), and secondly, the court, in the exercise of its discretion, must be satisfied, after considering the evidence presented in the 185 affidavit, that any one or more of the four factors indicate that the proceedings can be more conveniently or fairly tried in another court. This determination on any of the factors does not set a binding precedent as they exercise discretion based on the evidence before the court on a case-to-case basis. 190 [12] Based on the authorities considered above, I hold that it is apparent from the alleged facts in this suit, at the instance of determining the application, that there exists a cause of action or facts occurring within the local or territorial jurisdiction of the High Court in Malaya, 195 i.e. Ipoh or Shah Alam. Therefore, as it stands this court i.e. the Ipoh High Court can allow the Plaintiff to maintain the claim in the Ipoh High Court as this court certainly has the jurisdiction to determine the cause of action that arose in any of the territorial jurisdictions of the High Court in Malaya. It follows from that fact and pursuant to 200 the schedule to Section 25 CJA and Order 57 that this court is also vested with the power to transfer and the discretion to determine if any one or more of the four conditions is satisfied for the proceedings to be more conveniently or fairly tried in some other court, based on the particulars provided in the affidavit evidence 205 adduced in the application for transfer of proceedings. [13] Further, in the exercise of discretion to determine if any one or more of the four conditions are met, the evidence before this court, as provided in the affidavits, inclines this court to accept that the cause 210 of action accrued in Ipoh, where the Plaintiff resides and conducts his business. Though, at first, the monies were transferred to the Defendant in tranches of tens of thousands to be invested for a better return, this did not materialize. The Defendant had agreed to return all the monies without interest, treating them as a friendly 215 loan. Accordingly, the Plaintiff and the Defendant had entered into a ‘Friendly Loan Agreement’ dated 9 May 2023, which states that the monies will be repaid over 24 months starting from 15 July 2023 without any interest. It was to be paid by monthly payments of at least RM10,000 and to settle the entire amount by 15 July 2025. 220 There no mention of the place where this monies were to be paid but if the payment is defaulted by two consecutive payments, legal action can be instituted to recover the remaining amount. According to the Plaintiff, the Defendant did make a few repayments on the friendly loan agreement and then defaulted on two consecutive 225 payments, resulting in this suit. These few payments were received by the Plaintiff while residing and working in Ipoh. Therefore, the cause of action arose in Ipoh due to the non-receipt of these payments. In Shearn Delamore & Co & Anor v Joseph Lee Henn Shen [1998] 3 MLJ 833; [1998] 3 CLJ 799, Justice NH Chan in a 230 majority decision stated: “In the present case, no place had been specified for the performance of the statutory promise by the respondent to pay (s 171 Contracts Act), his duty was to apply to the appellants to name a place for the payment to be made, 235 and to pay it to them at that place (s 50 Contracts Act). Section 50 does not mean that it is for the respondent to choose the venue for the payment to be made to the appellants. It is for the appellants to name the place where they want to be paid. Here the appellants have asked to be 240 paid in Kuala Lumpur.” [14] The ‘Friendly Loan Agreement’ is the only documentary evidence available which could prove where the parties reside. It indicates the address of the Defendant is in Kedah and the Plaintiff’s is in Negeri 245 Sembilan. This court does not accept that the cause action accrued at the place where the agreement was executed instead it was at the instance of non-receipt of payment by the Plaintiff while was residing and working in Ipoh. 250 [15] Even if this court is incorrect in its determination of conditions (1) to

(4), there are other reasons that make the transfer undesirable in the interests of justice. The subject matter is straightforward and can be resolved summarily as indicated by the Plaintiff, making trial unnecessary. However, if the case cannot be determined summarily 255 and a trial is inevitable, and it becomes known or proven during the trial that the Plaintiff and its witnesses are not from Ipoh, this court has the discretion to award costs to the Defendant, even if the Plaintiff succeeds at the trial. Therefore, considering that the Defendant's travel costs can be compensated and the case can be 260 resolved speedily if it remains in the High Court of Ipoh, it is evident that transferring the proceedings to the Shah Alam High Court would inevitably cause a delay. [16] In any event, as decided in the case of Liziz Plantation v Liew Ah 265 Yong [2021] 10 MLJ 360; [2020] 10 CLJ 94, I agree that transferring proceedings for the sake of convenience and the cost of traveling long distances for court attendance should be of less importance in the hierarchy of considerations. Justice Su Tiang Joo rightly explained this in the case as follows: 270 “Held 3: In the circumstances of the case, and given the increasing acceptance of remote communication technology, it would not be in the interest of justice to allow the transfer application. It would not secure the expeditious and economical disposal of the action. With the experience 275 gained in using remote communication technology in dealing with the Movement Control Orders, that was extant and necessitated by the Covid-19 pandemic, the physical location of any one litigant or witness and the issue of having to physically travel to any court have become very 280 much less important. Hearings and meetings could now be done via a variety of internet platforms.” Conclusion [17] Based on the above paragraphs and the evidence provided, I am of the view that this court is the appropriate forum for this case. The 285 cause of action arose in Ipoh, where the Plaintiff resides and conducts business, and it is where the repayment by the Defendant ought to have been made, which the Defendant defaulted in paying the Plaintiff who resides in Ipoh. Hence, the cause of action arose in Ipoh. Factors such as hardship and increased costs should no 290 longer be considered as important in the light of modern advancements in remote communication technology, as highlighted in the case of Liziz Plantation v Liew Ah Yong (supra), which reduced the significance of physical appearances and traveling costs for hearings. Therefore, it is the decision of the court that the 295 application to transfer the case to the Shah Alam High Court is refused, and the matter shall proceed in this court to ensure a fair and efficient resolution. [18] In the upshot, Enclosure 5 is dismissed with no orders as to costs. 300 Date : 4 June 2024 305 Moses Susayan MOSES SUSAYAN Judicial Commissioner 310 High Court in Malaya at Ipoh, Perak 315 Counsel: 320 For the Plaintiff : Dexter Mah Advocates and Solicitors Messrs K S Su & Mah Ipoh, Perak 325 For the Defendant : Wei Yet Lee Advocates and Solicitors Messrs Lee & Gan Chambers Cheras, Kuala Lumpur 330 (Notice: This Grounds of Decision is subject to official editorial revision) 335 340