Welton Builder Sdn Bhd v Dato' Sri Tee Yam (JA-22NCvC-34-02/2025)

The Defendant’s application before this Court is made under Order 57 rule 1 of the Rules of Court 2012, read together with paragraph 12 of the Schedule to the Courts of Judicature Act 1964. The Defendant seeks an order to transfer this action to the Kuala Lumpur High Court to be heard with Civil Suit No. WA-22NCvC-40-01/2021 (“KL Suit”). The Plaintiff opposes the application.

Parties filed their written submissions and bundle of authorities and orally submitted before this Court on 13 October 2025. The decision was fixed for today (28 October 2025).

The Defendant’s application was premised on the ground that the KL suit and this suit are both arises from the same commercial transaction and factual matrix, namely, the RM 30 million payment connected to the Joint Venture Agreement (“JVA”) between Orion Tower Sdn Bhd and Shanghai City Sdn Bhd. The Defendant contended that the same documentary evidence and witnesses would be required in both cases, and that transfer would prevent inconsistent findings.

The Plaintiff, disputes these assertions and maintains that this claim is not founded on the JVA, but upon a personal promise allegedly made by the Defendant to refund RM 30 million if the promised construction contract was not awarded. The Plaintiff further states that neither party to this suit is a party to the KL Suit, and that the two proceedings are legally and factually distinct.

The Defendant’s asserts that the RM30 million, being the amount claimed was part of the JVA funding, channelled through the Plaintiff as a conduit. The Plaintiff, however affirms that the payment was made personally to the Defendant in Johor Bahru pursuant to a personal representation that the Plaintiff would be awarded the building contract for the Orion Tower project. This is an undertaking independent of the JVA.

The law distinguishes between factual connection and legal nexus. Even if similar facts appear in both suits, a transfer is justified only if the rights and obligations asserted arise from the same transaction. In Business Media International Sdn Bhd v Hitman Solutions Live Sdn Bhd & Anor [2018] MLJU 1596, the High Court held that where two sets of proceedings emanate from the same events and transaction and seek overlapping reliefs, they ought to be dealt with in the same forum to avoid duplicity and inconsistent findings. In the present case, however, this claim is based on an alleged personal promise by the Defendant, whereas the KL Suit concerns contractual and corporate liabilities under the JVA. The Court is of the view that the overlap of monetary quantum is therefore incidental, not determinative.

The Defendant has failed to produce any primary documentary evidence demonstrating that the RM30 million paid by the Plaintiff in this action was contractually part of the JVA funding, as opposed to an independent personal undertaking. His assertion that the plaintiff in the KL Suit (Orion Tower Sdn Bhd), Welton Property Sdn Bhd and Welton Builder Sdn Bhd operate as a “single economic entity” is, at best, a bare allegation. The law is clear that a company is a separate legal person from its shareholders and related companies and that it is not open to the court to disregard corporate personality save in very exceptional circumstances. A party seeking to pierce the corporate veil must establish special circumstances showing that the company in question is a mere façade concealing the true facts (see: Perman Sdn Bhd & Ors v. European Commodities Sdn Bhd & Anor [2005] 4 CLJ 750). No such circumstances have been pleaded or proved in this case.

It is undisputed that the Defendant is not a party to the KL Suit and that the Plaintiff was previously named but subsequently removed as one of the defendants in the counterclaim filed in that suit. No appeal was lodged against that removal. The absence of common parties is a material consideration. In Selinsing Mining Sdn Bhd v. Selinsing Gold Mine Manager Sdn Bhd & Ors [2017] 2 CLJ 610, the High Court emphasised that the statutory power to transfer proceedings under paragraph 12 of the Schedule to the Courts of Judicature Act 1964 is not a vehicle for indirect consolidation or coordination of actions involving different parties and distinct causes of action. In the present case, the Defendant’s application, though framed as a transfer under Order 57 ROC 2012, would in effect cause both matters to be heard before the same judge notwithstanding that they involve different parties, legal issues and reliefs. To allow such an order would be to use the transfer jurisdiction to achieve indirectly what consolidation could not lawfully achieve.

The Defendant relies on POSC TI Sdn Bhd v Kerajaan Negeri Terengganu & Anor [2016] 10 MLJ 663 and MCAT Gen Sdn Bhd v Celcom (Malaysia) Berhad [2007] 8 MLJ 277, submitting that where two actions concern the same subject matter, transfer serves judicial economy and consistency. However, both authorities are distinguishable on their facts. In each, the same parties were litigating on identical contractual rights. Here, the connection between this case and the KL Suit is only tangential. The KL Suit revolves around the validity and performance of the JVA between Orion Tower and Shanghai City, whereas the present suit is confined to an alleged personal representation by the Defendant to refund monies paid. The element of personal liability that underpins this action does not arise in the KL Suit.

For completeness, the Plaintiff contends that the Defendant’s prayer impermissibly directs this suit to a specific Judge contrary to section 20 of the Courts of Judicature Act 1964 [Act 91]. The Court does not accept this objection. The relief sought is for transfer from this registry to the Kuala Lumpur High Court; the administrative allocation of the case to any particular Judge remains within the purview of the Chief Judge of Malaya under section 20.

The phrase “expedient for the ends of justice” in Order 57 rule 1 ROC 2012 has been interpreted to mean that the transfer must bring about a genuine advancement of justice rather than mere administrative convenience. In Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Bhd [2021] 8 MLJ 948, the Court held that the discretion to transfer should be exercised sparingly and only where the justice of the case plainly requires it. On the evidence before this Court, no such necessity has been shown. The Defendant’s affidavit makes broad claims of efficiency but fails to demonstrate any concrete prejudice if this matter remains in Johor Bahru.

The Plaintiff, in contrast, has shown that all relevant dealings, witnesses and documents are located in Johor Bahru. The alleged representation was made here and the payment originated from the Plaintiff’s Johor bank account. The Defendant’s suggestion that Kuala Lumpur would be “more convenient” is unsupported by particulars. Territorial convenience alone cannot justify a transfer when the actions differ in parties and causes of action as reaffirmed in Selinsing Mining.

While modern technology reduces the hardship of parties or witnesses attending a particular registry, as recognised in cases such as Liziz Plantation v Liew Ah Yong [2021] 10 MLJ 360, that consideration does not displace the more fundamental distinctions in parties, causes of action and forum

The Defendant further contends that inconsistent findings may arise if both courts independently address the RM30 million payment. With respect, the Court finds this apprehension speculative. The KL Suit will determine issues arising under the JVA between corporate entities, while this suit requires determination of whether the Defendant personally undertook to repay the Plaintiff. The principle on Lesco Development Corp Sdn Bhd v Malaysia Building Society Bhd [1988] 2 MLJ 184 is apposite. The risk of inconsistent findings must be real and immediate, not theoretical. Here, the likelihood of inconsistency is remote, given that the legal issues are not the same. Further, any finding made in the KL Suit on the RM30 million payment would not be binding on the present Plaintiff or Defendant, who are not parties to that action.

Moreover, the balance of convenience weighs against transfer. As stated in Loganathan a/l Natchimuthu v Nageswary a/p Thangavellu [2021] MLJU 2122, where transfer would disadvantage one party without tangible benefit to the other, the discretion ought not to be exercised. The Plaintiff would be compelled to litigate in a different division of the High Court, incur additional costs and face delay. The Defendant, on the other hand, would suffer no prejudice if the matter proceeds in Johor Bahru, where it was properly commenced.

Finally, the Court reiterates that separate companies are, in law, separate legal persons. The fact that Welton Builder Sdn Bhd, Orion Tower Sdn Bhd and Welton Property Sdn Bhd may share common controllers or addresses does not, without more, convert them into a single litigating persona. As explained in Perman Sdn Bhd & Ors, the corporate veil may only be pierced in very exceptional circumstances, where special facts show that the company is a mere façade concealing the truth. No evidence of fraud, façade or misuse of the corporate form has been pleaded or proved in this case.

In light of the above, this Court holds as follows –

the two suits do not share a common cause of action;

the parties are legally distinct;

the alleged factual overlap is incidental;

there is no real risk of inconsistent findings; and

the balance of convenience and the ends of justice favour the suit remaining before this Court

Accordingly, Defendant’s application is dismissed with costs of RM6,000.00, subject to allocator. Dated : 28 October 2025 Dr. Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Plaintiff : Allan Loh together with Kenny Messrs. Ong Ban Chai & Co. Solicitor for the Defendant : Nurin Husnina Binti Hussein Messrs. Ahmad Deniel, Ruben & Co.