YEO GEOK HUAT berniaga di bawah nama dan gaya GH YEO ENTERPRISE v 1. ) BLACKSTONE MINING SDN. BHD. (WA-22NCvC-470-08/2025)

This is the Court’s decision on Enclosure (Encl) 4, which was dismissed on 17 October 2025.

Encl 4 is the Defendants’ Application filed pursuant to Order 57 Rule 1 and Order 92 Rule 4 of the Rules of Court (ROC) 2012 to transfer this Suit to be heard by a Judge at the High Court of Malaya in Kuantan, Pahang; and pending this being decided, the Defendants’ have sought an Extension of Time to file their Defence or after any Appeal against the dismissal of the Application, as the case may be.

According to the Defendants, the crux of the Application is that the services were rendered at Bukit Ibam, Muadzam Shah and Batu Yon, Pahang, and that the Defendants operate their business in Pahang and all their witnesses are based in Kuantan.

The Defendants contend that the High Court of Malaya in Kuantan, Pahang has jurisdiction and is the proper forum to hear this Suit.

After hearing short Oral Submissions on 15 October 2025, the Application was dismissed.

There was a prayer to extend the time to file the Defence pending the disposal of Encl 4. As Encl 4 was dismissed, the prayer for an Extension of Time has become academic. S/N nm1/0q9VwEO34haJRjNzjg The Facts of the Dispute as discerned from the Statement of Claim and the status of the Main Suit 7. The Plaintiff, Yeo Geok Huat, trading as GH Yeo Enterprise, provided transportation services and leased equipment to the First Defendant, Blackstone Mining Sdn Bhd between May 2014 and January 2019 for mining and ore processing operations in Pahang.

These services included transporting materials and leasing nine lorries and four excavators to the First Defendant.

The Second Defendant, Shi Xiao Jin, a Chinese national and sole shareholder and Director of the First Defendant, personally guaranteed payment for the outstanding amounts under a Debt Agreement signed in July and August 2019.

Under the Debt Agreement, the Defendants acknowledged a total outstanding sum of RM4,330,861.57 [being the sum total of RM1,548,861.57 for transportation services; and RM2,782,000.00 for equipment rental]. The Defendants allegedly promised to settle the debt before 1 January 2020 and agreed to pay interest at 10% per annum if payment was delayed. Despite repeated demands, including letters sent by the Plaintiff’s solicitors on 22 July 2025 to both Defendants, the debt remained unpaid as of the filing of the Writ of Summons herein. S/N nm1/0q9VwEO34haJRjNzjg

The Plaintiff is now seeking Judgment against both Defendants, jointly and severally, for the outstanding RM4,330,861.57, interest at 10% per annum from 1 January 2020 until full settlement, legal Costs, and any other Relief deemed fair by the Court. The Claim rests on the Defendants’ breach of their contractual obligations under the Debt Agreement and their failure to pay despite formal demands.

In summary, the Plaintiff’s Suit is a claim to recover an acknowledged debt that remains unpaid, along with interest and Costs.

The Defendants have not filed a Defence and although a Judgment in Default of Defence was filed vide Encl 14, this was rejected by the Court as the Defendant had already, prior to this, entered an Appearance and filed the Application in Encl 4, seeking time to file their Defences pending the disposal of the Transfer Application in Encl 4.

The Merits of Encl 4 The Defendants support Encl 4 by an Affidavit in Encl 5 affirmed by the Second Defendant who deposed that the crux of the Suit is: a. The First Defendant operates mining activities in Pahang and its employees and witnesses are in Pahang. S/N nm1/0q9VwEO34haJRjNzjg b. The Deponent himself resides in Aria Luxury Residence in Kuantan, Pahang. c. The subject matter of the Suit is related to services rendered in relation to an iron ore mining in Bukit Ibam, in Muadzam Shah and at Batu Yon. d. All files and records are maintained in Kuantan. e. The nexus of the Suit is with Kuantan, and the appropriate forum is the High Court at Kuantan.

The Plaintiff filed an Affidavit, which was objected to by the Defendants, with a Notice of Preliminary Objection on various grounds. This objection is found in the Notis Bantahan Awal in Encl 26.

A perusal of the Plaintiff’s Affidavit in Encl 9 shows that the deponent is a Chinese national residing in China. There is no indication that he understands the Malay language. There is also no Jurat by any Interpreter to show that the Affidavit was translated. All that is seen is that the Deponent signed the Affidavit [in the Malay language] before the Consular Officer in Shanghai. There is no indication from this Consular Officer that the Affidavit in the Malay language had been translated to the Deponent. Therefore, the essential requirement that a Jurat must be present when an interpretation is required in such S/N nm1/0q9VwEO34haJRjNzjg cases was not met. There is not even a corrective Affidavit or any application made to formalise the defect that the Plaintiff filed to address these errors. The Affidavit suffers from a serious defect and cannot be accepted into evidence. See: Kordial Kaur Kundang Singh v EC Controlled Demolition Sdn Bhd & Ors [2002] 6 CLJ

295.

However, that is not the end of the matter. The issue that arises is whether this Court ought to allow Encl 4 by default, notwithstanding the lack of an Affidavit in Opposition.

In the considered opinion of this Court, even without considering the Plaintiffs’ Affidavit, the Defendants must still satisfy this Court that the Application has merit and that it ought to be allowed. An Application for Transfer such as this must fulfil the necessary prerequisites stated in Order 57 Rule 1 of the ROC 2012 before it can be allowed, even though the Plaintiffs’ Affidavit has not been considered. This is because the burden is on the Defendants to prove that their Application has merit and ought to be allowed. It is trite that only after the Defendant has shown some material on the merits, the burden would shift to the Plaintiff to rebut.

The Defendants submitted that the grounds of Transfer were satisfied. Notwithstanding this submission, it was incumbent upon S/N nm1/0q9VwEO34haJRjNzjg this Court to assess those grounds and to rule whether a Transfer was warranted.

The Parties filed their respective Written Submissions in Encl 20, 23, 28 and 30 with the authorities relied upon, which this Court has considered.

This Court had dismissed the Application on 17 October 2025 after hearing Oral Submissions. I will address the related legal position in these applications before providing the reasons for rejecting the Defendants’ submissions.

The Legal Position of Transfer Applications The Defendants have invoked Order 57 Rule 1 and Order 92 Rule 4 of the ROC 2012.

Order 57 Rule 1 of the ROC 2021 and its related sub-rules read:

Transfer of proceedings to another Court (O. 57 r. 1)

Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Court.

Before making any order to transfer any proceedings from-

the High Court to another High Court of co-ordinate jurisdiction; S/N nm1/0q9VwEO34haJRjNzjg

a Subordinate Court to the High Court;

the High Court to a Subordinate Court; or

a Subordinate Court to another Subordinate Court, the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or Subordinate Court which shall hear the case is located at or nearest to the place where-

the cause of action arose;

the defendant, or one of the several defendants, resides or has his place of business;

the facts on which the proceedings are based exist or are alleged to have occurred;

the land the ownership of which is disputed is situated; or

for other reasons it is desirable in the interests of justice that the proceedings should be transferred.

Rule (4) of the ROC 2012 above is derived from section 23(1) of the Courts of Judicature Act (CJA) 1964 which reads:

Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where-

(A) the cause of action arose; S/N nm1/0q9VwEO34haJRjNzjg

(B) the defendant or one of several defendants resides or has his place of business;

(C) the facts on which the proceedings are based exist or are alleged to have occurred; or

(D) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.

The term ‘local jurisdiction’ in section 23 of the CJA 1964 takes its meaning from section 3 of the CJA 1964 which, for the present purposes, would mean: “local jurisdiction” means-

in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory of Kuala Lumpur;”

This simply means that each High Court, as stated above, is the High Court of Malaya and is equally empowered to hear any matter that arises within the territorial jurisdiction of the High Court of Malaya. Each one is the High Court of Malaya, and it is but a branch and not a separate and distinct entity as compared to the High Court of Sabah and Sarawak. S/N nm1/0q9VwEO34haJRjNzjg

See: Sova Sdn Bhd v Kasih Sayang Realty [1988] 2 MLJ 268 The above is premised upon Article 121(1) of the Federal Constitution.

There shall be two High Courts of co-ordinate jurisdiction and status, namely—

one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(Repealed) and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

From a reading of the Defendant’s Affidavit and Submissions, the issue being raised is essentially that the Kuantan High Court is the more appropriate or convenient forum to hear this dispute notwithstanding that both the High Courts in Kuala Lumpur and Kuantan are branches of the High Court of Malaya and that “each branch of the High Court in Malaya located in any state has concurrent jurisdiction to entertain any civil proceedings regardless S/N nm1/0q9VwEO34haJRjNzjg of whether the cause of action arose in another state”: Sova Sdn Bhd.

The submission of a more convenient forum is known as the doctrine of ‘forum non conveniens’. The doctrine of ‘forum non conveniens’, was succinctly explained by Peh Swee Chin SCJ (as His Lordship then was), in the case of American Express Bank Ltd v Mohamed Toufic Al-Ozeir & Anor [1995] 1 MLJ 160 at pp 280–281 as follows: The doctrine of forum non conveniens appears to have originated in Scotland and has finally found full acceptance by the House of Lords in Spiliada Maritime Corp v Consulax Ltd (The Spilida) [1986] 3 All ER 843 after a series of decisions, as described and set out so well in that very interesting and readable joint article by R H Hickling and Assoc Prof Wu Min Aun [1994] 3 MLJ xcvii. The main judgment in Spiliada was delivered by Lord Goff, who adopted the dictum of Lord Kinnear in Si v Robinow [1892] 19 R (ct of Sess) 665 668 as being the fundamental principle in regard to this doctrine ie, that there is some other tribunal, having competent jurisdiction, in which, the case may be tried more suitable for the interest of all parties and for the ends of justice. Lord Goff cautioned that the word ‘conveniens’ in forum non conveniens meant suitability or appropriateness of the relevant jurisdiction and not one of convenience. We are in entire agreement with the fundamental principle so expressed. S/N nm1/0q9VwEO34haJRjNzjg The most important factor described above does arise, of course, out of a great variety of factors that a Malaysian Court ought to consider in applying the said doctrine, the prominent one being that whether any particular forum is one with which the action has the most real and substantial connection.

Taking the cue from the above, what then is the criterion to be satisfied when a Court is faced with such an Application?

The criterion is found in section 23 of the CJA 1964 and in Order 57 Rule 1 of the ROC 2012, as seen above.

In following the judgment of Mary Lim J [as Her Ladyship then was] in POSCV Ti Sdn Bhd v Kerajaan Negeri Terengganu & Anor [2016] 10 MLJ 663, the test as stated by Her Ladyship is seen at paragraphs 18 and 19 of the judgment, as follows: [18] First of all, there is power to make such an order under O 57. The exercise of this discretionary power must take into consideration the factors set out in O 57 r 4(A) to (E). These factors are the same factors found in s 23 of the Courts of Judicature Act 1964 (‘Act 91’). [19] It is also evident from a proper reading of O 57 r 4, not any one factor will prevail over the other. The court is to weigh any or all the factors relied on in making a decision on whether the application ought to be acceded to. S/N nm1/0q9VwEO34haJRjNzjg

Further, in Lim Guan Eng v FZ Sdn Bhd [2015] 8 MLJ 469, it was held that simply because the First Defendant was a company carrying on business in Petaling Jaya, Selangor, and the Second Defendant was resident in Cyberjaya, this was insufficient to have the matter transferred from Penang to Shah Alam.

In Muhammad Hafidz bin Mohd Dusuki v Hassan bin Zulkifli [2020] MLJU 2042, the Learned Judge, when faced with a similar Application where one of the grounds was the old age of the Defendant’s father, and that it would be difficult to travel due to the Covid-19 pandemic restrictions, held that such a reason was insufficient as the Court has sufficient power to have matter heard via video conferencing for evidence-taking. Such power is not new and is found in Order 33A of the ROC 2012. [See: PU(A)351/2020].

Having considered the legal position of such Applications, the question is whether the matter should be transferred to the Kuantan High Court.

In assessing the appropriateness of the forum, regard must be had to Order 57 Rule 4 of the ROC 2012 and this Court must assess whether the Kuantan High Court should hear the matter or whether it should remain in Kuala Lumpur. See Low Loong Yoong & Anor v S/N nm1/0q9VwEO34haJRjNzjg Low Kok Choon & Anor [2014] 2 MLJ 725 where His Lordship Nantha Balan J [as he then was] held “The relevant provision relating to the transfer of a case from one division of the High Court to another division within West Malaysia is O 57 of the Rules of Court 2012. The most important task in a transfer application was to ascertain which court had the closest nexus to the dispute.”

37.

Cause of Action and Situs of Breach: The Plaintiff’s claim is based on a Surat Hutang executed by both Defendants. The breach alleged is the failure to pay the acknowledged debt. In Amalan Lengkap Sdn Bhd v SKS Coachbuilders Sdn Bhd [2016] MLJU 513, in the judgment of Vazeer Alam Mydin Meera J [now FCJ], the Court held that in a contract for payment, the breach occurs where payment is due, typically at the creditor’s place of business. The Plaintiff resides and operates in Kuala Lumpur. [12] In the present case, I find that the Plaintiff’s pleaded cause of action arose in Melaka. The facts pleaded by the Plaintiff shows that there was a demand made by the Plaintiff for the Defendant to make payment of the balance due under the Contract. In a contract that involves the payment of money, the breach occurs when there is failure to pay; and the cause of action would have accrued at the place where the payment is to be made. Though the contract itself does not stipulate the place of payment, it would be reasonable to S/N nm1/0q9VwEO34haJRjNzjg surmise that any payment due under the Contract would naturally be payable at the Plaintiff’s office in Melaka. This principle was reiterated by Charles J in Northey Stone Co v Gidney [1894] 1 QB 99 at p 100 in the following terms: The action is brought to recover the balance of price of goods sold and delivered. According to the law applicable to contracts, there being no special stipulation as to the place of payment, the defendant must pay at Bath, where his creditors, the plaintiffs, live.

Hence, the closest nexus is Kuala Lumpur. Therefore, Proviso (A) and (C) of Order 57 Rule 4, favour the Plaintiffs.

Residence and Business of the Defendants: In Encl 5, the Second Defendant deposes his address ‘for service’ in Kuantan, but in Exhibit A of Encl 5, his address is listed as Kuala Lumpur. Notwithstanding the discrepancy is the address, and notwithstanding that the First Defendant operates in Kuantan, the crux of the issue is the debt and the breach. The failure to pay is the breach which occurred in Kuala Lumpur. The crux of the Plaintiff’s case is the payment of the debt. There are no other issues. Hence, this Court is satisfied that Proviso (B) of Rule 4 of the ROC 2012 above has no impact or relevance.

Convenience of Witnesses and Documents: The Defendants claim that their witnesses and documents are in Kuantan but failed to S/N nm1/0q9VwEO34haJRjNzjg provide particulars of the same. In Liziz Plantation v Liew Ah Yong [2021] 10 MLJ 360 [see paragraphs 43 to 45] and R Ramani v Deluxe Exclusive Lounge [2016] MLRHU 1421, the Courts held that modern technology (e.g., Zoom) mitigates logistical inconvenience. Order 33A of the ROC 2012 overcomes any inconvenience [See Paragraphs 12 – 14].

Proviso (D) has no bearing in this Suit, as the issue does not concern any land or ownership that is disputed.

No Parallel Proceedings or Overlapping Issues: There is no related Suit pending in Kuantan or elsewhere, therefore there is no risk of any inconsistent finding.

The Plaintiff’s choice of forum is not shown to be oppressive or inappropriate. The balance of convenience does not decisively favour Kuantan. S/N nm1/0q9VwEO34haJRjNzjg

Accordingly, the Application in Encl 4 is dismissed with Costs in the Cause of the Main Suit. Dated the 18th day of November 2025 ……………………………….. AVINDER SINGH GILL A/L RANJIT SINGH JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC2) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA S/N nm1/0q9VwEO34haJRjNzjg Counsel for the Plaintiffs: Mr. Ong Swee Leong together with Mr. Teoh Chung Loong Messrs Armiy Rais (Petaling Jaya) Counsel for the Defendants: Mr. Kumeraselvam Messrs Acob Goldie S.S. Chew (Kuantan) S/N nm1/0q9VwEO34haJRjNzjg