Pulau Pinang Clinic Sdn Bhd v 1. ) Wakil Diri bagi Harta Pusaka Ranjit Kaur A/P Nahar Singh Simati (PA-A72NCvC-185-05/2023)

SINGH, SIMATI HAR SUNEEL SINGH GILL (NO. KAD PENGENALAN: 781109-07-5511) ...DEFENDAN-DEFENDAN DAN HARPAL SINGH GILL (NO. KAD PENGENALAN: 810803-07-5693) …PEMOHON JUDGMENT (ENCLOSURE 15 – APPLICATION TO INTERVENE AND SET ASIDE JUDGMENT IN DEFAULT) 11/03/2024 15:21:45 PA-A72NCvC-185-05/2023 Kand. 35 S/N wIngd829/0KODVgnR9vyog INTRODUCTION [1] This is an application filed by the Applicant (A) / Proposed Intervener (PI) vide Enclosure 15 under Order 15 Rule 6 (2)(a) and (b) and Order 13 Rule 8 of the Rules of Court 2012 (ROC) for leave to intervene into this proceeding and to set aside the Judgment In Default Of Appearance (JIDA) obtained by the Plaintiff (P) against the First Defendant (D1) on 9.6.2023. [2] Should PI be permitted to intervene into this proceeding and should the JIDA be set aside? BRIEF BACKGROUND FACTS [3] On 9.5.2023, P filed a Writ action (i.e.: this suit) claiming for unpaid medical bills. [4] Second Defendant (D2) filed Memorandum of Appearance (Enclosure 4) on 2.6.2023. [5] On 8.6.2023, P filed Affidavit of Service (Enclosure 5) in order to prove service on D1. [6] On 9.6.2023, P filed Certificate of Non-Appearance (Enclosure 7) under Order 13 Rule 7 of the ROC 2012 and obtained JIDA against D1. [7] On 11.8.2023, PI filed a Notice of Application (Enclosure 15) supported by an Affidavit In Support (Enclosure 16) in order to obtain leave to intervene into this proceeding and to set aside JIDA dated 9.6.2023 against D1. S/N wIngd829/0KODVgnR9vyog THE WORDS OF ORDER 15 RULE 6(2)(a) AND (b) [8] PI filed this application under Order 15 Rule 6(2)(a) and (b). The relevant parts of Order 15 Rule 6 are set out here: 6 Misjoinder and non-joinder of parties (O 15 r 6)

A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application:

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely —

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. ARE THE REQUIREMENTS OF ORDER 15 RULE 6(2)(a) and (b) MET BY PI? S/N wIngd829/0KODVgnR9vyog [9] In order for this Court to consider this application filed by PI to intervene, this Court must first determine whether PI has satisfied the requirements of Order 15 Rule 6(2)(a) and (b). ORDER 15 RULE 6(2)(a) [10] PI made this application (Enclosure 15) under Order 15 Rule 6(2)(a) and asserts that D1 has been improperly and unnecessarily made a party to this proceeding. [11] This Court is guided and bound to follow the case of Kerajaan Malaysia v Yong Siew Choon [2006] 1 MLJ 1 where the Federal Court held that— [8].. The starting point for such a consideration is the object of O 15 r 6A which is described in the Malaysian High Court Practice (1998 Desk Edition) Vol I at p 361 in the following terms: The purpose of this rule is to overcome the difficulties of suing the estate of a person who had died before the commencement of the action and in whose estate no grant of probate or of administration had been made. There is no person to sue. [12] This Court is of the view that, D1 has been correctly named as one of the Defendant in this action taking into consideration that the deceased were the one who was admitted on 9.10.2022 and received the medical services from the Plaintiff. Since the deceased died on 20.10.2022 and no grant of probate or letter of administration has been made, this action S/N wIngd829/0KODVgnR9vyog brought against the deceased estate under Order 15 Rule 6A of ROC

[13] Based on the above, this Court observes that there is sufficient or close and substantial connecting factor for D1 to be named in this proceeding. (see Jone Theseira v Eileen Tan Ee Lian [2002] 4 MLJ 629]. ORDER 15 RULE 6(2)(b) [14] In reading Order 15 Rule 6(2)(b), this Court is guided and bound to follow the observations of the Court of Appeal on whether PI should be allowed to intervene, in Dato’ Dr Haji Mohamed Haniffa bin Haji Abdullah & Ors v Koperasi Doktor Malaysia Bhd & Ors and another appeal [2008] 3 MLJ 530; [2008] 3 CLJ 323. The Court of Appeal observed— [5] In resolving that question, I begin, as I must, with RHC O 15 r 6(2)(b). It reads: Two observations are called for. In the first place, it is important to note that the rule permits intervention on two separate grounds. In sub-para (i) it enables intervention where the presence of a party before the court is necessary. In sub para (ii) intervention is enabled where a party to an action claims relief or a remedy which will materially affect the non-party-intervener’s rights. In such circumstances, the court is empowered to permit intervention if it forms the view that to do so will be just and convenient … [15] Is the presence of PI in this proceeding necessary, to ensure that all matters in dispute in this action is effectively and completely determined? This Court hold that it is not. S/N wIngd829/0KODVgnR9vyog [16] In this case, since the person against whom the action should have been brought has died but the cause of action still survives, and no grant of probate or letter of administration has been made, hence this action was brought against the estate of the deceased under Order 15 Rule 6A of ROC 2012. With that, the estate of the deceased named as D1. [17] P stated that D2 was named in this action as he acts as the guarantor for the Deceased who signed Guarantee of Payment dated 9.10.2022. [18] With regard to the above mentioned, This Court hold that PI’s presence in this action is not necessary as the parties that are directly involved are named as the Defendants in this suit in order to determine whether P’s claim should be allowed or dismissed. [19] PI has not satisfied this prerequisite factor, to enable this court to consider whether it is just and convenient to let PI intervene in this suit. [20] The relief sought by P in this Suit is the amount for money for unpaid medical bills. Does the relief claimed against the Ds’ materially affects PI’s rights? PI asserts that it does. PI submits that he is lawful son of the Deceased, PI has the right and entitlement to be an administrator of the Deceased estate and PI is the rightful beneficiary of the Deceased estate. [21] This Court is not inclined to hold that P’s relief sought materially affects PI’s rights as PI is merely a beneficiary and not the legally appointed administrator for estate of the Deceased. FOR PI TO BE HEARD, WHAT INTEREST OVER THE ESTATE MUST PI HAVE? S/N wIngd829/0KODVgnR9vyog [22] Under case law, for PI to be heard on his application to intervene, PI must first demonstrate that he has a legal interest over the estate (the subject matter of this Writ Action) — Bank Pertanian Malaysia Bhd v Rampai Maluri Sdn Bhd (Ab Rahim bin Ghalim, proposed intervener) [2020] MLJU 2203. [23] In Bank Pertanian, His Lordship Atan Mustaffa Yussof Ahmad JC (as he was then), said this — [27] However, to be allowed to intervene, the proposed intervener must satisfy the legal test of having a legal interest in the subject matter of the proceedings first and foremost … ... [29] It is clear to me, that the proposed intervener’s right to be heard, as perceived by the proposed intervener does not override the requirement of the proposed intervener having legal interest in the subject matter of this proceedings. [24] It should be noted that, PI must not only have a legal interest over the Deceased estate, he must have a direct legal interest in the estate before he will be considered to be allowed to intervene. [25] This Court refers to the summary of His Lordship Anand Ponnudurai JC (as he was then) in Securities Commission Malaysia v Wong Shee Kai & Ors (Bright Packaging Industry Bhd, proposed intervener) [2021] MLJU 324; [2021] 5 CLJ 411, where it was stated that — S/N wIngd829/0KODVgnR9vyog [31] The principles on intervention are well settled and can be summarised as follows:

in determining whether a party may be added as an intervener, the test to be adopted is whether the proposed intervener’s ‘legal interests’, ie, his rights against or liabilities to any party to the action in respect of the subject matter of the action, would be directly affected by any order or judgment which might be made in the action. Commercial interests alone would not be sufficient to allow intervention. This was held in the Supreme Court case of Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 2 MLJ 63; [1992] 2 CLJ 1153; [1992] 1 CLJ Rep 344 (‘Tohtonku’), where the landmark Privy Council decision of Pegang Mining Company Ltd v Choong Sam & Ors [1969] 2 MLJ 52; [1968] 1 LNS 96 (‘Pegang Mining’) was cited: It is settled law, on the authorities, that a party may be added if his ‘legal interests’ will be affected by the judgment in the action but not if his commercial interests alone would be affected: per Lord Diplock in Pegang Mining Co Ltd v Choong Sam & Ors at pp 55–56. In that case, the Privy Council had formulated the test to determine whether a party’s interests in the matter are ‘legal’ or merely ‘commercial’ in the following words (at p 56): ‘‘l\ better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in this action? for sufficient interest to justify intervention, a direct legal interest must be established. An indirect or commercial interest does not satisfy the requirement (see Federal Court decision of Chong Fook Sin v Amanah

(ii) the burden is on the proposed intervener to satisfy the court that the requirements set out in O 15 r 6(2) of the ROC have been met before intervention can be allowed (see: High Court decision of Kumarasamy proposed intervenerllai S/N wIngd829/0KODVgnR9vyog Govindaraju & Ors v Vijayasundaram Sambantham Mudaliar & Anor; Vegadachalam Palaniappen (Intervener) [2010] 4 MLJ 567; [2009] 1 LNS 1722). [26] In the context of beneficiary to an estate, this Court is guided and bound to follow the case of Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188; [1997] 4 CLJ 393 where the Federal Court held that— ..in law, a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter's estate is complete and distribution made according to the law of distribution of the intestate estate. [27] Further, in the case of Chong Fook Sin v Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 MLJ 721, the Federal Court propunded that — [39] …

Further, even if the interveners were beneficiaries, they did not have legal interest in the estate of the deceased pending the administration of the same.. [28] Anchored on the above cited case laws, it is clear that PI has no direct legal interest in the estate of the deceased as PI merely a beneficiary and not an appointed administrator. [29] This Court therefore holds that PI does not have the threshold direct legal interest in the deceased estate, hence this Court should not consider allowing him to intervene in this action. PI’S PRAYER (2) TO SET ASIDE JIDA S/N wIngd829/0KODVgnR9vyog [30] This Court observes that since PI’s application to intervene in this action is not allowed, hence PI would not have the locus standi to set aside the JIDA that was obtained by P against D1. (see Jurupakat Sdn Bhd v Kumpulan Good Earth (1973) Sdn Bhd [1988] 3 MLJ 49 and Sedgwick, Collum & Co v Rossid Insurance Sedgwick, Collum & Co [1927] AC 25). [31] In order for PI to proceed with setting aside, he would need to be a party to this proceeding. In this case, since PI is not a party to this proceeding, prayer (2) of his application is seen to be irrelevant. With that, the law on setting aside of JIDA will not be dealt with in this Grounds of Judgment. CONCLUSION [32] For the reasons stated above, this Court hereby dismissed PI’s application with cost of RM1,500.00 to be paid by PI to P. Dated: 11 March 2024 SHYAHIRAH BINTI ABDUL SALIM Magistrate Penang Magistrate’s Court S/N wIngd829/0KODVgnR9vyog Counsel/Solicitors For the Applicant / Kok Yuen Lin Proposed Intervener: [Messrs Simon Murali & Co.] For the Plaintiff: Sharmila Kaur Jaswant Singh [Messrs. K. Ahmad & Sharmila] Legislation referred to:

Order 13 Rule 7, Order 13 Rule 8, Order 15 Rule 6(2)(a) and (b) and Order 15 Rule 6A of the Rules Of Court 2012. Cases referred to:

Kerajaan Malaysia v Yong Siew Choon [2006] 1 MLJ 1

Jone Theseira v Eileen Tan Ee Lian [2002] 4 MLJ 629.

Dato’ Dr Haji Mohamed Haniffa bin Haji Abdullah & Ors v Koperasi Doktor Malaysia Bhd & Ors and another appeal [2008] 3 MLJ 530; [2008] 3 CLJ 323.

Bank Pertanian Malaysia Bhd v Rampai Maluri Sdn Bhd (Ab Rahim bin Ghalim, proposed intervener) [2020] MLJU 2203].

Securities Commission Malaysia v Wong Shee Kai & Ors (Bright Packaging Industry Bhd, proposed intervener) [2021] MLJU 324; [2021] 5 CLJ 411.

Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188; [1997] 4 CLJ 393.

Chong Fook Sin v Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik bin Raja Ishak, deceased) & Ors [2011] 1 MLJ 721. S/N wIngd829/0KODVgnR9vyog

Jurupakat Sdn Bhd v Kumpulan Good Earth (1973) Sdn Bhd [1988]

Sedgwick, Collum & Co v Rossid Insurance Sedgwick, Collum & Co [1927] AC 25. S/N wIngd829/0KODVgnR9vyog