Selvarajan A/L Veeriah v Bangsar Aman Management Corporation (WA-22NCvC-777-12/2024)

BANGSAR AMAN MANAGEMENT CORPORATION

KARTHIGASU A/L K. RATNASINGAM

FOO JIA–HOU

ANG LING LING

ADRIAN HO TUCK DJI

RUBAN SATKUNA NATHAN

PLANET GARDENS SDN BHD (NO. SYARIKAT: 201101002535 (930672-A)) 08/01/2026 00:24:54

LIEW TZE HANN

ISAAC DANIEL (NO. K/P: 641009-10-5563) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff was an advocate and solicitor in Malaysia. He has ended up residing in Melbourne, Australia, for the past 20 years. As the registered proprietor of half (½) share of an apartment in Kuala Lumpur in a small development consisting of only 12 units of apartments, he decided to sue the Defendants in this court after withdrawing his claim against them at the Strata Management Tribunal. [2] The 1st, 2nd, and 3rd to 6th Defendants in this suit have respectively filed applications for the Plaintiff to be ordered to provide security for costs to them. Since all submissions had been filed earlier, the 3 applications were fixed for hearing on 30th September 2025. [3] On 26th September 2025, i.e. 4 days before the hearing date of 30th September, the Plaintiff, on his own volition, issued a letter to his solicitors Messrs Steven Thiru to discharge them as his solicitors. Messrs Steven Thiru immediately responded by filing an application for an order that they have ceased to act as the Plaintiff’s solicitors. [4] The Plaintiff’s action of discharging his solicitors caused unnecessary difficulty for this Court and the Defendants because the Defendants were all prepared and raring to proceed with the hearing of their respective applications for Security for Costs against the Plaintiff. The 1st Defendant’s application (Enclosure 41), the 2nd Defendant’s application (Enclosure 124) and the 3rd to 6th Defendant’s application (Enclosure 39) were all fixed for hearing on 30th September 2025 but here, we have a plaintiff who had deliberately discharged his solicitors just 4 days before the hearing date. I allowed Messrs. Steven Thiru’s application for them to cease to be the Plaintiff’s solicitors. [5] Further, regardless of whether the Plaintiff’s ‘last minute’ act of discharging his solicitors was to stifle the hearing or not, and despite objections by respective learned counsel for the Defendants, I granted an adjournment of the Defendants’ respective applications. In fairness to them, I fixed an early hearing date of 16th October

There should have been no problem for the Plaintiff to engage counsel to resist the respective Defendants’ applications as Messrs Steven Thiru had filed written submissions for him prior to the Plaintiff discharging them on 26th September 2025. [6] On 6th October 2025, the Plaintiff filed a Notice of Intention to Act in Person. He also filed an affidavit on the same day. The filing of those 2 documents after he had discharged his solicitors on 26th September 2025, is evidence that the Plaintiff had access to the court’s filing system. This fact is mentioned here because the Court’s records show that the Plaintiff had subsequently written a letter dated 3rd November 2025 to the then Rt. Hon. Chief Judge of Malaya (“the CJM”), complaining that this Court had declined to adjourn the Defendants’ respective applications to November 2025 and that he has no access to the court’s filing system. The CJM had directed the Deputy Registrar of this Court to prepare a chronology of events and a report. [7] On 16th October 2025, the Plaintiff, who had on 6th October 2025 filed a Notice of Intention to Act in Person, failed to turn up for the hearing. Hearing based on the affidavits and submissions, including the Plaintiff’s, proceeded as scheduled. As I find merits in the Defendants’ respective applications, this Court ordered security for costs of RM50,000 to be furnished by the Plaintiff within 14 days to the 1st, 2nd and 3rd to 6th Defendants respectively, i.e. a total of RM150,000. Payment was to be made to the solicitors for those Defendants, to be held as stakeholders until the Plaintiff’s action is disposed of. It was ordered that the Plaintiff’s claim against those Defendants shall be struck out if the Plaintiff fails to comply. The Plaintiff’s action was stayed until he complies with the order to furnish security for costs. Background Facts [8] The strata development in which the Plaintiff is the registered proprietor of half (½) share of an apartment is in fact a tiny development with only 12 units of apartments. The tiny size of the development shows that the amount of collection of Maintenance Charges and Sinking Fund contribution could not have been much. [9] The 1st Defendant is the Management Corporation of the strata development. The 2nd Defendant is the managing agent engaged by the 1st Defendant. The 3rd to 6th Defendants are proprietors of other units and are/were committee members of the Management Corporation. The 7th and 8th Defendants are proprietors of the remaining units. This Court had allowed the 9th Defendant’s application to strike out the Plaintiff’s claim against him because he was the auditor for the Management Corporation’s accounts and the Plaintiff had reasonable cause of action against the auditor who played no role in the management of the strata development. [10] The Plaintiff alleges mismanagement by the Defendants, and had previously filed claims against most of the Defendants at the Strata Management Tribunal making various allegations but had withdrawn his claims there. He is repeating most of the same allegations in his pleadings in this civil suit. [11] It is noteworthy that the Plaintiff’s sister, who is the Plaintiff’s co-proprietor of his unit, served as the treasurer of the 1st Defendant (Management Corporation) and would have access to all the accounts of the 1st Defendant. The Defendants’ Applications for Security for Costs [12] The 1st, 2nd, 3rd to 6th Defendants’ respective applications are all premised upon the fact that the Plaintiff resides in Australia. They seek to invoke Order 23 Rules of Court 2012 which empowers this Court to order a plaintiff who is ordinarily not a resident in Malaysia to furnish security for costs. [13] The affidavit filed on behalf of the 3rd to 6th Defendants exhibited an undisputed newspapers article published on 31st August 2015 about the Plaintiff being interviewed and sharing about his migration to Australia in 2005, changing his profession from that of an advocate & solicitor in Malaysia to become a fulltime artist residing in Melbourne, Australia. [14] It was also averred by the Defendants that the Plaintiff would have no financial means in Malaysia to comply with an order to pay costs because his only asset in Malaysia – half (½) share in his apartment which is occupied by his mother – is charged as security to AIA Bhd, i.e. is an encumbered property. The Plaintiff has also averred in his affidavit that he is experiencing financial difficulties. [15] It was also highlighted by the Defendants that the Plaintiff has failed to disclose his address in Australia. The Plaintiff has replied in his affidavit that he is willing to disclose his address if required by the Court. The Plaintiff’s submissions to resist the Defendants’ Applications for Security for Costs [16] The Plaintiff takes the stand that as he is still a citizen of Malaysia, he should not be regarded as a person ordinarily a resident out of the jurisdiction of the courts of Malaysia. [17] The Plaintiff also contends that he is the owner of the apartment and has a strong case against the Defendants. Analysis of the Facts and Law [18] Essentially, the authorities cited in the written submissions of both sides are about the application of O.23 Rules of Court 2012. The law is trite, depending on the facts of each case. [19] First, Order 23 rule 1 Rules of Court 2012 gives the Court a wide discretion to order security for costs. It reads:- “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.” (emphasis added) [20] Rule 1(a) to (d) of Order 23 are independent of each other, i.e. not conjunctive. Rules 1(b), (c) & (d) are applicable to a plaintiff who is ordinarily resident in the jurisdiction. Rule (1)(b) refers to a nominal plaintiff who is “suing for the benefit of some other person”, and presumably the nominal plaintiff is a ‘man of straw’ who has no money to pay costs if his action is dismissed. Likewise, Rules 1(c) and (d) respectively refer to a plaintiff who is evasive – in failing to state his address or deliberately stating a wrong address in the Writ and one who changes his address midway “with a view to evading the consequences of the litigation”, i.e. a plaintiff with the intention of disappearing without paying costs if his action is dismissed by the court. It must be emphasised that rules 1(b), (c) & (d) are applicable to a plaintiff who is ordinarily resident within the jurisdiction, and not just to a plaintiff who is ordinarily resident out of the jurisdiction of our courts in Malaysia. [21] The word “ordinarily” in Rule 1(a) which reads “ordinarily resident out of the jurisdiction” simply means “usually”. In layman terms, it refers to a plaintiff who is usually a resident in a place outside the jurisdiction of this Court. If the purpose of Order 23 is to require plaintiffs who are foreign citizens suing a citizen of Malaysia to give security for costs of his action, the rule could have simply said so. The said rule mentioned nothing about the citizenship of a plaintiff. [22] Based on the wording of Order 23 r(1) RC 2012, I am of the view that the application of O.23 is also a two-stage inquiry. The first step would be to determine, based on the facts of a particular case, whether the situation as described in Rules 1(a) or (b) or (c) or (d) exists. If the answer is in the negative, the plaintiff’s application for security for costs could be dismissed in limine forthwith. If any of the situations described is found to exist factually, the second step as provided in Rule 1 would come into play: “having regard to all the circumstances of the case,” whether the Court thinks it just to order the plaintiff to give such security for the defendant’s costs of the action. [23] There is cogent evidence that the Plaintiff proudly described himself publicly as a “Melbourne-based artist,” and in multiple emails admitted that Melbourne is his place of residence. He did not dispute the contents of a newspapers article published on 31st August 2015. The following screenshots from that article (exhibited in the 3rd to 6th Defendants’ supporting affidavit) are self-explanatory: [24] As mentioned above, the relevant question is not whether he is a citizen of Malaysia but where is his ordinary place of residence? The undisputed evidence points to Melbourne as the Plaintiff's ordinary place of residence. I am constrained to agree with the submissions by learned counsel for the 3rd to 6th Defendant that it is undisputed that the Plaintiff fully relocated to Melbourne in 2005, and not for just a short stint. [25] The truth is that the Plaintiff was employed in Melbourne and has remained there, making Melbourne his home since 2005. Further, the Plaintiff himself has in multiple emails expressly identified Melbourne as his place of residence. Thus, it is my judgment that the Plaintiff is not ordinarily a resident in Malaysia. He has lived continuously in Melbourne since 2005, perhaps with occasional trips to Malaysia to visit his mother. [26] Even though this Court finds that the Plaintiff is ordinarily a resident out of the jurisdiction as described in O.23 r.1(a) Rules of Court 2012, it is still necessary to proceed to the second step as provided in O.23 r.1 to consider “having regard to all the circumstances of the case,” whether it would be just to order the Plaintiff to give such security for the Defendant’s costs of this action. [27] A plaintiff who is ordinarily resident out of the jurisdiction may be exempted from furnishing security for costs if he is able to show that he has assets within the jurisdiction to satisfy any future order for costs. In this case, the Plaintiff could provide no such assurance. His only property in Malaysia is the apartment in which he is the registered proprietor of half (½) share. Crucially, the said property is charged to AIA Berhad – a fact not denied by the Plaintiff. In his earlier email, the Plaintiff had unwittingly alluded to his poor financial position. Whilst the impecuniosity of a plaintiff by itself is not sufficient ground to order him to furnish security for costs, it is certainly a factor to be considered, especially in a case like this in which the Plaintiff has a history of withdrawing his claim – as what he did at the Strata Management Tribunal after the Defendants were compelled to incur legal fees to draft Statements of Defence, etcetera. [28] It is also pertinent that the Plaintiff has not stated his actual residential address in Australia in the cause papers. He states the address of his apartment but there is no doubt that he could not be found there as he resides in Australia. This is the situation described in O.23 r.1(c) Rules of Court 2012. Conclusion [29] Based on the above analysis of the facts and the law, it is abundantly clear to me that this Court ought to exercise its discretion to order security for costs to be furnished by the Plaintiff to the 1st, 2nd, and 3rd to 6th Defendants respectively. I am of the view that since Counsel for the Plaintiff: Leah Marie Samuel SOLICITORS FOR THE PLAINTIFF: MESSRS STEVEN THIRU Advocates & Solicitors Unit A1-12-01, Arcoris Mont Kiara, Jalan Kiara, 50480, MONT KIARA KUALA LUMPUR. Counsel for the 1st Defendant: Sarah Ho Yixin (Tan Yoong Chang with her) SOLICITORS FOR THE 1ST DEFENDANT: MESSRS SREENEVASAN Advocates & Solicitors Suites B-1C & D, Level, Block B The Five @ Kompleks Pejabat Damansara, Jalan Dungun, Damansara Heights, 50490 KUALA LUMPUR. Counsel for the 2nd Defendant: Syahana Binti Azhari SOLICITORS FOR THE 2ND DEFENDANT: MESSRS NANDRAJOG Advocates & Solicitors 3-9-9, Tower 3, UOA Business Park, 1, Jalan Pengaturcara U1/51, Kawasan Perindustrian Temasya, GUAMAN SIVIL NO: WA-22NCvC-777-12/2024 40150 SHAH ALAM, SELANGOR. Counsel for the 3rd-6th Defendants: Pavitra Pillai A/P Ramesh Pillai (James Lau Jian Hui with her) SOLICITORS FOR THE 3RD-6TH DEFENDANTS: MESSRS M DAVID MORAIS Advocates & Solicitors 274, Lorong Maarof, Bukit Bandaraya, 59100 KUALA LUMPUR. LEGISLATION REFERRED TO:

Order 23 Rules of Court 2012.