Sivasubramaniam Sivayogarajasingam v 1. ) Saumian Sivayogarajasingam (BA-22NCC-114-08/2022)

SAUMIAN SIVAYOGARAJASINGAM (No. Passport Australia: PB3146686)

AVIS HOLDINGS SDN BHD (No. Syarikat: 201501042724)

LARICO INRASTUCTURE SDN BHD (No. Syarikat: 200701021208) – DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s application is made pursuant to Order 57 Rules of Court 2012 for an Order that this suit (BA-22NCC-114-08/2022, after this is refer to as “Suit 114”) be transferred to another Shah Alam High Court that is SAHC NCvC 3. S/N JneXefZgGkaNKriLix07zA [2] In its application, the Plaintiff states that –

there are 4 Suits been registered in Shah Alam High Court (SAHC) as follows: i. one Suit registered in July NCvC10: BA-22NCC-98- 07/2022 (after this is refer to as “Suit 98”). ii. one Suit registered in August at this Court (NCvC12): BA-22NCC-114-08/2022 (after this is refer to as “Suit 114”). iii. two Suits registered in October 2022 at NCvC3: BA- 22NCC-131-10/2022 (after this is refer to as “Suit 131”) and BA-24NCC-109-10/2022 (after this is refer to as “OS 109”).

the Plaintiff is also concurrently filed an application to transfer Suit 98 to NCvC3 and to consolidate Suit 131 and OS 109. And it is intended that both Suit 98 and Suit 114 upon their transfer to NCvC3 would be consolidated with the Suits that were already at NCvC3.

all the 4 Suits have arisen principally due to financial disputes between the Plaintiff (father) and the First Defendant in this Suit/Suit 114 (his only son) in family-owned companies.

the Plaintiff stated that he had provided all the capital resources to the companies while the Defendant and the other family members hold shares in the companies. The Plaintiff pleaded that the dispute is caused by the Defendant’s greedy intention to control the companies and to lay hands on the considerable assets in the companies.

the family-owned companies are – • Avis Holdings Sdn Bhd (the Second Defendant in this Suit/Suit 114 and the second defendant in Suit 98). • Larico Infrastructure Sdn Bhd (the Third Defendant in this Suit/Suit 114 and the plaintiff in OS 109). • Austin Holdings Sdn Bhd (the defendant in Suit 131).

the 4 Suits are related to similar intra-family disputes in the same family. Therefore, it would be more convenient and just for all the 4 Suits to be heard in the same Court that is in SAHC NCvC3. Further, it would be in the interest of justice that the same forum is utilized to have the disputes dealt with in a fair and consistent manner and also can be disposed off at the same time. S/N JneXefZgGkaNKriLix07zA Objections by the Defendants The First Defendant’s Contentions [3] From the written submission by the First Defendant, the First Defendant contended that the Plaintiff’s Transfer Application are – • scandalous, oppressive and irrelevant pursuant to O. 57 of the Rules of Court 2012. • misconceived in law. • baseless. • impossibility/no certainty of subsequent consolidation. • tactical maneuver. [4] The Plaintiff’s application is obviously designed to disparage the First Defendant’s image in an attempt to colour or prejudice these proceedings. The disparaging remarks of the First Defendant are casting bare and scandalous allegations including but not limited to –

the First Defendant was illegally moving large sums of money to dummy companies for illegal purposes;

(ii) the First Defendant had illegally made the Plaintiff shareholders and signatories in these dummy companies; S/N JneXefZgGkaNKriLix07zA

(iii) the First Defendant was unlawfully enriching himself at the expense of the Plaintiff;

(iv) the 1st Defendant is dishonest and greedy, which in any event, (a) were never the Plaintiff’s pleaded case in any of the Suit(s); and (b) more importantly, scandalous, irrelevant and otherwise oppressive. [5] With that, the First Defendant pray that this Court exercises its discretion to strike out irrelevant allegations made by the Plaintiff in his affidavits pursuant to O. 41 r. 6 of the Rules of Court 2012 as insulting remarks and offensive language should not find its way in an affidavit, and an affidavit must be free from scandalous or oppressive matter. If there is a failure to comply with this rule, the court is empowered to strike out the offending part or parts of the affidavit. The cases cited by the learned counsel for the First Defendant: Repco (M) Sdn Bhd v Tan Tho Fatt & Ors [2003] 6 MLJ 146 (HC). [6] The learned counsel for the First Defendant refers to O. 41 r. 6 of the Rules of Court 2012 which provides for this in that the “Court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive” and cited the case of Sangeet Kaur Deo v Chief Justice of The Federal Court of Malaysia [2019] 1 LNS 2312, the High Court held as follows: S/N JneXefZgGkaNKriLix07zA “The words “scandalous, irrelevant or otherwise oppressive” are to be construed disjunctively instead of conjunctively. An affidavit can be struck out on the ground that it is scandalous on its own, or irrelevant on its own or oppressive on its own or a combination of any of the three acts. The word “scandalous” means wholly unnecessary and irrelevant. An averment is ‘irrelevant’ if it does not relate to the fact in issue of the case at hand or does not have any bearing to the relief prayed for by the parties in the proceedings.”. [7] Based on the Plaintiff’s allegations, the learned counsel for the First Defendant averred that the paragraphs are not the Plaintiff’s pleaded case and more importantly irrelevant to this Transfer Application and have no bearing on the reliefs sought. It must be remembered that the Plaintiff cannot aver matters not previously pleaded in the Statement of Claim as parties are bound by pleadings. [8] The learned counsel for the First Defendant explained the principles of transfer application as conferred by the Section 25(2) read together with Item 12 of the Schedule Courts of Judicature Act 1964 and O. 57 r. 1 of the Rules of Court 2012 that prescribes that a High Court may to transfer a case before it to another High Court of co-ordinate jurisdiction. S/N JneXefZgGkaNKriLix07zA [9] The learned counsel for the First Defendant submitted that – “We respectfully submit that this Transfer Application is misconceived in law, is without merits, and ought to be dismissed. Firstly, reliance upon O. 57 of the Rules of Court 2012 is misplaced. O. 57 of the Rules of Court 2012 caters to a transfer from one branch of the High Court to another branch. For example, a transfer from the Kuala Lumpur High Court to the Shah Alam High Court. See: Jaya Sudhir Jayaram v. Nautical Supreme Sdn Bhd [2019] 6 CLJ 292 (CA) where the Court of Appeal held that – “[11] Order 57 r. 1(1) caters specifically for cases where, for instance, a case in the Kuala Lumpur High Court would be more expediently heard in the High Court in Shah Alam.”. Such is NOT the Plaintiff’s Transfer Application here as the Plaintiff seeks to transfer this suit within the same branch of the High Court. Secondly, O. 57 of the Rules of Court 2012 does not permit a transfer between 2 courts located within the same branch of the High Court. See: Koh Heng Jin Holdings Sdn Bhd & Anor v. Lee Quan Yoong & Anor [2022] 1 LNS 504 (HC) where the High Court dismissed an application to transfer from NCC2 to NCC6 S/N JneXefZgGkaNKriLix07zA of the Kuala Lumpur High Court. In holding so, the High Court held that – “[29] …an application to transfer under Order 57 Rule 1 of the Rules which is based on Court’s power under item 12 of the Schedule to the CJA can only be permitted if the transfer is to another branch of the High Court. Order 57 Rule 1 is not applicable to a transfer of proceedings between two Courts located within the same branch of the High Court. \ … [33] In the present case, the facts fall squarely within that in Kerajaan Negeri Kelantan. I am bound by the decision and would hold that this Court has no jurisdiction to transfer Suit 395 herein to another High Court within the same Division of the High Court at Kuala Lumpur under Order 57 of the Rules of Courts 2012 notwithstanding my views in MTD Capital Bhd. See also: Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Anor [2011] 6 CLJ 649 (CA) where the Court of Appeal held that a transfer under Item 12 of the Schedule to the Courts of Judicature Act 1964 does not contemplate a transfer from one division to another division of the Kuala Lumpur High Court. S/N JneXefZgGkaNKriLix07zA In this present case, the Transfer Application seeks to transfer proceedings within the same division of the same High Court (from NCvC12 to NCvC3) which is clearly not permitted under O. 57 of the Rules of Court 2012. 27. Thirdly, O. 57 of the Rules of Court 2012 deals with cases where a transfer is contemplated on the basis of forum convenient/non-convenient. See: Amalan Lengkap Sdn Bhd v. Sks Coachbuilders Sdn Bhd [2016] 1 LNS 883 (HC). However, in our case, there is no issue of forum convenient/non-convenient as all the suits were filed in the Shah Alam High Court.”. [10] As regards to the point that the Plaintiff’s Transfer Application is baseless, the First Defendant contended that the Plaintiff purports to reduce the suits to “essentially financial disputes” between a father and son, and alleges that there are common questions of law and/or facts between the suits is misconceived because – Firstly, there are no common facts in issue in all four suits. S/N JneXefZgGkaNKriLix07zA

The parties as in each Suits are different. The following table shows:

Saumian Sivayogarajasingam

(ii) Avis Holdings Sdn Bhd

(iii) Larico Infrastructure Sdn Bhd Suit 131 Sivasubramaniam Sivayogarajasingam Austin Holdings Sdn Bhd Larico Infrastructure Sdn Bhd

Sivasubramaniam

(ii) Yasimin bin Yusoff

(iii) Yew Guan Chin S/N JneXefZgGkaNKriLix07zA

The subject matter and cause of action in each suit are different. The following table shows: This Suit/Suit 114 This Suit pertains to purported dividend due and unpaid to the Plaintiff as a member of the 2nd Defendant. Suit 131 Suit 131 pertains to purported sums due to the Plaintiff (in this suit) from Austin Holdings Sdn Bhd (not a party to this Suit) following his purported recall of a ‘loan’. Larico Infrastructure Sdn Bhd (3rd Defendant in this Suit) filed the originating summons after Nadarajah a/l Sivapragasam was unlawfully removed as a director of the company

The reliefs sought in each suit are different. The following table shows:

Sum of RM10,000,000.00 purportedly representing dividend due to the Plaintiff.

(ii) Interests on the sum of RM10,000,000.00.

(iii) Costs S/N JneXefZgGkaNKriLix07zA Suit 131 i) Sum of RM6,307,694.44 purportedly representing his portion of the ‘loan’ recalled.

(ii) Interests on the sum of RM6,307,694.44.

(iii) Costs.

A declaration that the purported directors’ circular resolution dated 22.9.2022 accepting the purported resignation of Nadarajah a/l Sivapragasam as director of Larico Infrastructure Sdn Bhd is invalid, ineffective, null and void.

(ii) An order compelling the company secretary or any of his servants or agents to do all thing necessary to restore the Nadarajah a/l Sivapragasam as director of the Larico Infrastructure Sdn Bhd.

(iii) A declaration that the purported resolutions passed by the Plaintiff (in this Suit) and Yasimin bin Yusoff from S/N JneXefZgGkaNKriLix07zA

22.9.2022 are invalid, ineffective, null and void.

(iv) Damages.

Costs [11] The learned counsel for the First Defendant submitted that the Plaintiff’s Application is clearly militates against the presumption of impartiality and independence of a judge hearing a case. [12] Next, the learned counsel for the First Defendant submitted – “In light of the divergence in parties, factual matrix, legal issues and reliefs sought in each suit –

hearing the suits together will only complicate matters; (2 it would not be more conveniently or fairly tried if the suits were heard before the same judge in High Court NCvC 3;

the issue of whether the disputes can be dealt with in a fair and consistent manner does not arise; and

each suit can be pursued independently and there will be no risk that the Courts would arrive at inconsistent finding of facts. S/N JneXefZgGkaNKriLix07zA There is therefore no basis in law or fact for the Plaintiff’s Transfer Application.”. [13] For the point on Impossibility/No certainty of subsequent consolidation, the learned counsel for the First Defendant submitted that – • there is no certainty that a subsequent application for consolidation would be made. • the uncertainty is compounded by the fact that even if an application for consolidation were to be subsequently made in NCvC3 High Court, such an Order would almost certainly not be given. This is because there are no common questions of fact and/or law in all the suits as set out above. See: Koh Heng Jin Holdings Sdn Bhd & Anor v. Lee Quan Yoong & Anor [2022] 1 LNS 504 (HC) [14] For the point on tactical manoeuvre, the learned counsel for the First Defendant submitted that the Plaintiff’s Transfer Application is filed belatedly as a tactical manoeuvre to derail the proceedings in this Suit. The Plaintiff has filed a summary judgment application against the Defendants and the Defendants have filed to strike out the Plaintiff’s Writ and Statement of Claim for which this Court had set down for decision. S/N JneXefZgGkaNKriLix07zA [15] These multiple attempts were made to postpone the decision date for those applications including on grounds that there was an Application to Amend the Injunction Application made in Civil Suit No. BA-22NCC-98- 07/2022 (before YA Tuan Tee Geok Hock) which allegedly had a bearing on the Summary Judgment and Striking Out Applications (which it did not) but a postponement was granted nevertheless and now, another attempt to delay the Decision with the advent of this Transfer Application. [16] Therefore, the learned counsel for the First Defendant stated that if the proceedings herein are transferred, the proceedings in this action will be delayed as the matter will have to be rescheduled in NCvC3 High Court with its attendant increase in costs. New directions as to the interlocutory applications and further conduct of this Suit will have to be obtained from the NCvC3 High Court. Not only that, this Suit which was filed earlier in time, should not be transferred to NCvC3 High Court given the practice that a suit filed earlier in time should not be transferred to the court hearing the suit filed later in time. It should be the other way around. [17] On this point, the learned counsel for the First Defendant cited the High Court’s case in Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram (No 3) [1998] 5 CLJ 794 had held as follows: “Even assuming the plaintiff was minded to consolidate, surely common-sense dictates, unless one wants to be labelled with the charge of ‘judge choosing’, to consolidate the latter suit with the former to show a semblance of impartiality. On the contrary the plaintiff herein is attempting to consolidate this action which was filed earlier in time with the S5 action and which was filed later in time.”. S/N JneXefZgGkaNKriLix07zA [18] The learned counsel for the First Defendant maintained its stands that this Court is the proper forum to dispose of this Suit (Suit 114). In view of its submission, the First Defendant is guided by the decisions on transfer applications, the cases of Donna Lau Shan Shan v Christina Mei Mei Ng & Anor [2022] 1 LNS 1554, the High Court in dismissing the transfer application took into consideration the fact that the issues, facts and reliefs sought in both suits are different and distinct. The High Court also considered that transferring and consolidating the suits with multiple parties, issues and cause of actions would delay the matter, which would cause prejudice to the party; MBIAB Ventures Sdn Bhd & Anor v Yew Sow Chee & Anor [2022] 1 LNS 1848, the High Court in dismissing the transfer and consolidation application held that there is no convenience-advantage, no fairness-advantage, no geographical-advantage, no fewer-witnesses advantage, and no time-and-costs-savings advantage; and Liziz Plantation v Liew Ah Yong [2021] 10 MLJ 360, the Ipoh High Court in dismissing the transfer application held that the action could just as conveniently and fairly tried in the present court. The High Court also held that given the increasing acceptance of remote communication technology, it would not be in the interest of justice to allow the transfer application. [19] To conclude, the learned counsel for the First Defendant submitted that there is no reason why this Suit can be more conveniently or fairly tried in NCvC3 High Court. This Court is the proper forum to adjudicate this Suit fairly. S/N JneXefZgGkaNKriLix07zA The Second and Third Defendants’ contention [20] The learned counsel for the Second and Third Defendants had referred and adopt the main written submission filed by the learned counsel for the First Defendant in so far as it relates to the Second and Third Defendant, to oppose the Plaintiff’s Transfer Application. In totality, the learned counsel for the Second and Third Defendants submitted that the Plaintiff’s application to transfer proceedings is baseless and that this Court is the proper forum to adjudicate this Suit fairly. Decision on 7-4-2023 [21] On 7-4-2023, this Court made her decision as follows: KEPUTUSAN LAMPIRAN 38 (Notis Permohonan Plaintif di bawah Aturan 57 Kaedah-Kaedah Mahkamah 2012 untuk memindahkan tindakan ini ke Mahkamah Tinggi Sivil Shah Alam Lain) [1] Dalam Notis Permohonan sebagaimana Lampiran 38, Plaintif menyatakan bahawa terdapat 4 Guaman difailkan di 3 Mahkamah Tinggi Shah Alam yang berbeza iaitu NCvC10, NCvC12 dan NCvC3 (turutan berdasarkan nombor pemfailan mengikut bulan). [2] Mahkamah ini telah meneliti permohonan pada Lampiran 38, afidavit sokongan, afidavit bantahan Defendan-Defendan dan hujahan bertulis. Peruntukan O. 57 r. 1(4) RoC 2012 dan nas undang-undang kes juga diteliti. S/N JneXefZgGkaNKriLix07zA [3] Mahkamah ini mendapati keempat-empat kes mempunyai latar belakang yang serupa, namun pihak-pihak dalam setiap Guaman adalah berbeza. Mahkamah ini memutuskan bahawa adalah tidak wajar dan tidak adil untuk memindahkan Guaman ini ke MTSA NCvC3. [4] Dengan ini, Mahkamah ini memutuskan untuk menolak