Queck Han Tiong v 1. ) Chia Chin Koon (WA-22NCC-646-09/2024)

CHIA CHIN KOON [Identity Card No.: 741119105351]

NEO CHING HOE [Identity Card No.: 720725025121] …DEFENDANTS JUDGMENT Introduction [1] Enclosure 14 is the application filed by the Defendants for an order that the present Suit No. WA-22NCC-646-09/2024 (“Suit 646”) be transferred to the High Court at Pulau Pinang and for Suit 646 to be consolidated and or heard together with Civil Suit No. PA-22NCVC- 148-10/2024 (“Suit 148”). [2] I dismissed the application with costs and my grounds are set out below. Brief Background Facts [3] The Plaintiff was allotted 1,000,000 shares of a company known as Kujaya Management Sdn Bhd (“Kujaya Management”). [4] In the present Suit 646, the Plaintiff claimed against the Defendants for, inter alia, the return of 600,000 shares of Kujaya Management (“the Shares”) which were transferred to the 1st Defendant and 2nd Defendant sometime on 8.9.2021 pursuant to a sale but the payments of which have not been received. [5] In their defence against the Plaintiff’s claims, the Defendants contended that the Plaintiff did not own the Shares but instead had held the Shares on trust for one Neo Ching Yuen (“NCY”). [6] Subsequent to the filing of this Suit 646, NCY filed an action in the High Court at Pulau Pinang vide Suit 148. In the said suit, NCY is seeking the following reliefs:

declarations that the Plaintiff herein holds shares in Kujaya Management, Kujaya Dormitories Sdn Bhd and Agensi Pekerjaan Kujaya Sdn Bhd on trust for NCY;

a declaration that a loan of RM9,000,000-00 granted by the Plaintiff herein to NCY is null and void;

orders to transfer the shares held on trust to NCY;

an injunction to restrain the Plaintiff herein from selling or transferring the shares held on trust;

an injunction to restrain the Plaintiff herein from circulating certain poster. [7] Enclosure 14 is filed by the Defendants pursuant to Order 4 rule 1 and Order 57 rule 1 of the Rules of Court 2012 (“ROC 2012”) seeking an order from this Court for the present Suit 646 to be transferred to the High Court at Pulau Pinang hearing the Suit 148 and for both the causes or matters to be consolidated on such terms as it thinks just or to be tried at the same time or one immediately after another. Court’s Consideration [8] In Central Securities (Holdings) Bhd v Haron Bin Mohamed Zaid [1979] 2 MLJ 244 (“Central Securities”), the Federal Court held that “[t]he main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is ‘some common question of law or fact bearing sufficient importance in proportion to the rest’ of the subject matter of the actions ‘to render it desirable that the whole should be disposed of at the same time’…”. [9] The Federal Court in Central Securities further stated that “one of the tests in deciding whether consolidation should be ordered is to determine whether two inconsistent judgments will come into existence if it is not ordered”. [10] As regard the consideration for the transfer of a suit to another court, His Lordship Nantha Balan JC (as his Lordship then was) in the case of Low Long Yoong & Anor v Low Kok Choon & Anor [2014] 2 MLJ 725 held that the most important task in a transfer application is to ascertain which court has the closest nexus to the dispute. [11] In assessing the convenient or fair forum of the trial, this Court must be satisfied that Suit 646 that is sought to be transferred would be more conveniently or fairly tried in the High Court at Pulau Pinang. Matters such as where the cause of action arose, the residence and the hardship of the parties involved are important and therefore will be taken into consideration. The burden is on the Defendants making the application for the transfer to satisfy this Court that the High Court at Pulau Pinang court is the most appropriate forum to hear the case. [See also: Raja Thangiah v Baldev Singh Bhar [2001] 7 CLJ 130 and Amalan Lengkap Sdn Bhd v Sks Coachbuilder Sdn Bhd [2016] MLJU 513]. [12] Having considered the counsel’s respective written and oral submissions, I was of the view that the Defendants had not discharged their burden that this was a suitable case for Suit 646 to be transferred to the High Court at Pulau Pinang to be consolidated and or heard together with Suit 148 at all. [13] Firstly, the parties in Suit 646 and in Suit 418 are different. The Defendants in Suit 646 are not parties to Suit 418. The plaintiff in Suit 418, namely, NCY is not a party in Suit 646. If the Defendants herein require NCY to testify that the Shares transferred by the Plaintiff to the 1st and 2nd Defendants in Suit 646 herein in fact belonged to NCY, the Defendants are at liberty to call or subpoena NCY to testify at the trial of Suit 646. [14] Secondly and more importantly, there are no “common question of law or fact bearing sufficient importance in proportion to the rest” of the subject matter of both the actions to render it desirable that the whole should be disposed of at the same time. Whilst it is true that in Suit 148, NCY has contended that the Plaintiff herein holds shares in Kujaya Management on trust for him and the Defendants in Suit 646 herein are maintaining that the Plaintiff did not own the Shares, the legal questions to be determined in both the Suit 148 and Suit 646 are quite different. [15] In Suit 646, the legal question for determination is whether the Shares were transferred to the 1st and 2nd Defendant in consideration of certain payments which were not made. On the other hand, in Suit 418, the legal question in relation of the Shares is whether the same were held by the Plaintiff on trust for NCY. The Shares are now registered in the names of the 1st and 2nd Defendants. In the event that the Plaintiff herein is successful in his claims in Suit 646, the issue as to whether the Plaintiff holds the Shares on trust for NCY is still to be determined in Suit 418. [16] In fact, the Defendants are not only contending that the Plaintiff held the Shares on trust for NCY but that they had made payment to NCY for the transfer of the Shares. Thus, based on the Defendants’ own case, NCY’s action against the Plaintiff in Suit 418 will have no bearing on the Suit 646. To put it differently, since it is the Defendants’ case that they had paid NCY for the Shares, NCY’s claims in Suit 418 against the Plaintiff will necessarily exclude the Shares. [17] Thirdly, although there is an overlap of issues between Suit 646 and Suit 418, contrary to the Defendants’ contention, the disputes between the parties in Suit 646 and Suit 418 do not arise from a same transaction at all. [18] The disputes in Suit 646 arise from a sale and purchase of the Shares to the Defendants. In this connection, while the Plaintiff contended that the sale is between the Plaintiff and the Defendants, the Defendants on the other hand are contending that the said sale was between the Defendants and NCY, the true beneficial owner of the Shares. [19] In Suit 418 however, the disputes therein arise from a completely different transaction. It has to do with the purchase of the shares of Kujaya Management by NCY from one Datuk Wan Kian Han (“WKH”). It was pursuant to that transaction that NCY claims that the 1,000,000 shares of Kujaya Management became allotted to the Plaintiff to hold on trust for him. [20] Accordingly, it is my judgment that there will be little or no possibility of the two Courts arriving at conflicting decisions at all. [21] In any case, even if it is necessary in Suit 646 for this Court to determine if the Shares were held on trust by the Plaintiff for NCY, this issue is but only a small part of the many other issues that are to be determined by the High Court in Pulau Pinang. [22] Further, whilst trial dates have already been fixed for Suit 646 in November 2025, no trial dates have yet been fixed for Suit 418. An order to transfer the Suit 646 and to be consolidated or heard together with Suit 418 will only delay the disposal of Suit 646. Conclusion [23] In the premises, given that there are no common questions of law, no savings of judicial time and costs and little to no likelihood of the two Courts arriving at conflicting decisions, this was not a suitable case for an order to be made to transfer the action herein to the High Court at Pulau Pinang and to be consolidated and or heard together with Suit 418. [24] The appropriate order was for Enclosure 14 to be dismissed with costs fixed at RM 5,000 subject to allocator. Dated the 8th day of April 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiff: Mr. Wong Yee Chue together with Ms. Ho Hui Ying and Ms. Jean

Aw (Messrs. Y.C. Wong) Counsel for Defendant: Mr. Steven Tan Chee Qian together with Mr. Max Chuah Chen Tee (Messrs. Chuah Qian & Partners)

Central Securities (Holdings) Bhd v Haron Bin Mohamed Zaid [1979] 2 MLJ 244

Low Long Yoong & Anor v Low Kok Choon & Anor [2014] 2 MLJ 725

Raja Thangiah v Baldev Singh Bhar [2001] 7 CLJ 130

Amalan Lengkap Sdn Bhd v Sks Coachbuilder Sdn Bhd [2016]

Order 4 rule 1 and Order 57 rule 1 of the Rules of Court 2012