Walter Lo v San Wai Lik (WA-22NCvC-170-03/2021)

The company known as Folio Apparel Sdn Bhd seeks to intervene in this suit on the following grounds: -

That Folio Apparel Sdn Bhd has an interest or right to the subject matter of the claim as the Sale and Purchase Agreement relating to the sale of shares in the company.

(ii) That Folio Apparel Sdn Bhd should be allowed to intervene to ensure that all disputes between parties will be dealt with once and for all and effectively.

(iii) That the interest of Folio Apparel Sdn Bhd in law will be affected indirectly by any orders that this Court may make in this proceeding.

The said application to intervene is made pursuant to Order 15 rule 6 (2) (i) and / or (ii) of the Rules of Court 2012 or under Order 92 rule 4 of the Rules of Court 2012. 3

I have considered the application, affidavits and submissions filed by parties and after considering oral arguments put forward by learned counsel for the litigants, I find that the application should be dismissed with costs. My reasons for the same are as stated in the following paragraphs.

I reproduce relevant parts of Order 15 rule 6 (2) (b) (i) and (ii) of the Rules of Court 2012 and Order 92 rule 4 of the Rules of Court 2012.

The leading authority on the applicable test that this Court should consider in dealing with an application to intervene by a non-party is Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52, a decision of the Privy Council.

In that case Lord Diplock formulated the test as follows: - ³,W KDV EHHQ VRPHWLPHV VDLG DV in Moser v. Marsden [1892] 1 Ch 487 and Re LG Farbenindustrie AG [1944] Ch 41 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 only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between "legal" and "commercial" interests helpful. A better way of expressing the test is: will his rights 4 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 madHLQWKHDFWLRQ"´

I also refer to the decision of the Supreme Court in Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1992] 1 CLJ 344 and Arab Malaysia Merchant Bank Bhd v Dr Jamaludin Dato Mohhd Jarjis [1991] 1 CLJ Rep 19, where the above test laid down by the Privy Council was adopted in our jurisdiction.

7KH LQWHUYHQHU¶V FRXQVHO¶V ZULWWHQ VXEPLVVLRQ KDV KHOSIXOO\ summarised the grounds in which the application is justified. They are: -

The prayers and / or reliefs that are sought by the Plaintiff will affect the interest of the proposed intervener, which FRQVWLWXWHVWKHVXEMHFWPDWWHURIWKH3ODLQWLII¶VFODLP

(ii) 7KHUHOLHIVVRXJKWE\WKH'HIHQGDQW¶V&RXQWHUFODLPZLOODOVR affect the interest of the intervener.

(iii) The proposed LQWHUYHQHU¶V SUHVHQFH LV UHOHYDQW DQG necessary to ensure all matters are dealt with effectually and completely. 5

Having considered the pleadings and the prayers sought by the Plaintiff, in his Statement of Claim and the Defendant, in his Defence and Counterclaim, I do not find that the arguments posed by the proposed intervener justify it being added as a party to this proceeding under Order 15 rule 6 or even under Order 92 rule 4 of the Rules of Court 2012.

The remedies claimed by the Plaintiff only relate to the sum of RM 2, 500,000.00 to be paid by the Defendant. This order will not have any impact, either legally or from a financial perspective, on the proposed intervener. 7KHFRPSDQ\¶VULJKWVRUOLDELOLWLHVDJDLQVWWKH Plaintiff or even against the Defendant will not be affected by the orders sought by the Plaintiff. He only seeks payment from the Defendant.

, QRWH WKDW WKH 'HIHQGDQW¶V FRXQWHUFODLP UHVWV RQ WKH DOOHJHG representations made by the Plaintiff to the Defendant as to the financial status or financial standing of the proposed intervener. This GRHV QRW PHDQ WKDW WKH SURSRVHG LQWHUYHQHU¶V ³rights against or liabilities to any party to the action in respect of the subject matter 6 of the action may be directly affected by any order which may be made in the action´.

The proposed intervener claims that the 3ODLQWLII¶V claim before this Court may impact its management, its solvency, staff and may have an adverse impact on the financial well being and operations of the company. I find that this allegation is unsubstantiated and is intended to merely include a red herring into the proceedings and to delay the subject matter of this suit. ,GRQRWILQGWKDWWKH3ODLQWLII¶V claim will have such an impact as he is only making a personal claim against the Defendant and not against the company.

The proposed intervener also points out that its presence is QHFHVVDU\WRHQVXUHWKDWWKH'HIHQGDQW¶V&RXQWHUFODLPEHKHDUG with the assistance of the proposed intervener. This will allegedly ensure that the issue of the finance of the company will be explained by the proposed intervener. 7

I do not find that this ground justifies the addition / intervention of the said company as a party to this suit under Order 15 rule 6 or under Order 92 rule 4.

Firstly, I find that this issue is not substantiated by the proposed intervener or by the Defendant. The Defendant and his wife, Lennar Soon, are the sole shareholders in the company and will have access to any information or documents from the said company to enable the Defendant to put any defence that he intends to put forward in this suit.

Secondly, as I have said earlier, the said intervener has not shown any of its rights against or liabilities to any party to the action in respect of the subject matter of the action may be directly affected by any order which may be made in the action. This argument does not fulfil the said test and the addition of the company will merely delay and cause unnecessary costs. 8

I, therefore, find that the application is frivolous and does not support the applicable test as laid down in Pegang Mining Co Ltd v Choong Sam (supra).

For completeness, I also state that I agree with the arguments put IRUZDUG E\ WKH 3ODLQWLII¶V FRXQVHO $V , KDYH VWDWHG HDUOLHU WKH proposed intervener is not a party to the Sale and Purchase Agreement and will not be legally affected by the terms of the said agreement. I refer to Titisan Ilham Sdn Bhd v Koperasi Permodalan Melayu Negeri Johor Bhd (Bayu Megah Engineering Sdn Bhd ± proposed Intervener) [2017] MLJU 1055 and Chee Boon Yeong & Anor v Minply Industries (M) Sdn Bhd [2012] MLRHU 1.

In Titisan Ilham Sdn Bhd v Koperasi Permodalan Melayu Negeri Johor Bhd (supra), the Court held:- ³ [33] In the instant case, the Plaintiff is suing the Defendant based on the contract that had been unlawfully terminated by the Defendant. The Proposed Intervener is neither privy nor conferred any rights or benefits as the Plaintiff's claim is pursuant to the contract between the 9 Plaintiff and the Defendant. No mention is made of the Purposed Intervener in the instant case nor the contract. « [48] At the very least, the Proposed Intervener may only have an indirect interest. An indirect interest cannot amount to a 'legal interest'. For sufficient interest to justify intervention under order 15 rule 6(2)(b) ROC 2012, a direct interest must be established. An indirect or commercial interest does not satisfy the requirement. [Pegang Mining Co Ltd v. Choong Sam & Ors (Supra ), Majlis Agama Islam Selangor v. Bong Boon Chuen & Ors [2009] 6 CLJ 405; Chong Fook Sin v. Amanah Raya Bhd (as the administrator for the estate of Raja Nong Chik b. Raja Ishak, deceased & Ors [2010] 7 CLJ 917; [2010] 1 LNS 726; [2011] 1 MLJ ϳϮϭ΁͘͟

6LPLODUO\LQWKLVFDVHWKHSURSRVHGLQWHUYHQHU¶Vinterest is at best an indirect interest in the proceeding and do not fulfil the applicable test as laid down earlier. 10 C. Orders of this Court

Given the above, I dismiss the Application filed by the proposed intervener with costs. Dated 23rd December 2021 'DWR¶,QGHUD0RKG$ULHI(PUDQELQ$ULILQ Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 11 Lim Kon Keen & Yip John Joon for The Plaintiff Messrs. Seow & Megat (Kuala Lumpur) Advocates & Solicitors Hanan Kamal & Vicky Ong Xiao Qiu for Defendant Messrs. Arthur Wang, Lian & Associates (Kuala Lumpur)