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2025 MarsdenLR 86
HIGH COURT MALAYA GEORGETOWN
BIMAL PILLAI – Appellant
Versus
BRB MALAYSIA SDN BHD & ORS – Respondent
[Originating Summons No: BA-24NCvC-1953-09/2024]
The court has discretion to order security for costs based on a foreign plaintiff's financial status and residency, particularly where no assets are present within the jurisdiction.
Headnote:(A) Order 23 rule 1(1) of the Rules of Court 2012 - Whistleblower Protection Act 2010 - Application for security for costs - Court found merit in defendants' application based on plaintiff's status as a foreign national without assets in jurisdiction, establishing discretion to order security when just - Court struck out plaintiff's affidavit due to non-compliance with O 41 r 3 of ROC 2012 which was deemed defective. (Paras 2, 14, 15, 21, 30)
(B) Discretionary Nature of Security for Costs - Court must exercise discretion on security based on circumstances not automatically requiring security from foreign litigants - Considerations include plaintiffs' residency, assets, ability to satisfy cost orders, and bona fide merits of claims. (Paras 16, 18, 20, 28)
Facts of the case:
The plaintiff, employed as General Manager by the first defendant, alleged wrongful termination and sought relief under the Whistleblower Protection Act following a settlement agreement. The defendants sought security for costs based on the plaintiff's lack of assets and financial means within the jurisdiction. (Paras 3-5, 10)
Findings of Court:
The court ordered the plaintiff to furnish RM25,000.00 as security for costs for each application, with a failure to do so resulting in the claimant's case being struck out without leave to file afresh. (Paras 30)
Issues: Main issues included whether the plaintiff was ordinarily resident in the jurisdiction and if he could meet a costs order, and compliance with affidavit requirements. (Paras 9, 12, 24)
Ratio Decidendi: The court determined that non-compliance with affidavit rules rendered it defective. The circumstances justified the discretion to order security for costs due to the plaintiff’s financial status and lack of sufficient proof of residence. (Paras 13, 21, 28)
Result: The application for security for costs was allowed, requiring the plaintiff to furnish said security within 30 days.
| Table of Content |
|---|
| 1. initial applications for security for costs. (Para 1 , 2) |
| 2. background facts of the plaintiff's employment and claims. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 3. third defendant's objection to plaintiff's affidavit. (Para 11 , 12) |
| 4. court's analysis and findings regarding security for costs. (Para 13 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 5. legal principles guiding the court's discretion on security for costs. (Para 15 , 16 , 17 , 18 , 20) |
| 6. conclusion and order for security for costs. (Para 30) |
Introduction
[1] This is the application by the First and Third Defendants for security for costs under O 23 r 1(1) of the Rules of Court 2012 ( ROC 2012) and/or the Court's inherent jurisdiction, as set out in encls 36 and 30 respectively.
[2] Upon considering the cause papers and the written and oral submissions by the parties, and the authorities cited therein, this Court finds merit in the First and Third Defendants' application. My reasons are stated below.
Background Facts
[3] The Plaintiff, an Indian national, was employed as the General Manager of Technology in the Research & Development Department of the First Defendant from 1 August 2020 to 24 November 2022.
[4] On 3 August 2022, the First Defendant issued a show cause letter to the Plaintiff concerning allegations of misconduct. Subsequently, the First Defendant terminated the Plaintiff's employment effective 24 November 2022, by paying three months' salary in lieu of notice. The Plaintiff appealed the termination on 26 November 2022, but it was rejected by the First Defendant on 15 December 2022.
[5] The Plaintiff filed a representation for unfair dismissal under s 20(1) of the Industrial Relations Act 1967 . During the conciliation, the parties entered into a Settlement Agreement and Memorandum of Agreement dated 6 April 2023, whereby the First Defendant paid the Plaintiff RM1,226,988.00 as a full and final settlement of all matters related to his employment and termination. The Third Defendant was not involved in the Plaintiff's employment or termination and was not a party to the said Settlement Agreement.
[6] On 12 June 2024, the Plaintiff, through his solicitors, issued a notice of demand to the First Defendant alleging failure to protect him as a whistleblower under the Whistleblower Protection Act 2010 . The First Defendant denied these allegations and demanded restitution of the settlement sum. No response was received from the Plaintiff.
[7] The Plaintiff also issued a demand to the Third Defendant on 12 June 2024. The Third Defendant denied liability, stating that the Plaintiff was not its employee and that it had no involvement in the disciplinary process.
[8] The Plaintiff subsequently filed this action seeking relief under the Whistleblower Protection Act 2010 , naming multiple entities and individuals as defendants, including the First and Third Defendants. He has also filed an application for interim injunctive relief to prevent further disciplinary actions and reliance on the termination.
[9] The First and Third Defendants subsequently filed applications for security for costs in encls 36 and 30, respectively, asserting that the Plaintiff is a foreign national with no permanent residence, has no assets within the jurisdiction, and no known financial means to satisfy a costs order if the claim is dismissed.
[10] The First and Third Defendants seek an order for the Plaintiff to furnish security for costs in view of the history and nature of the proceedings.
The Third Defendant's Preliminary Objection On The Plaintiff's Affidavit In Reply In Enclosure 33
[11] The Third Defendant raised a preliminary objection to the admissibility of the Plaintiff's Affidavit in Reply, asserting non-compliance with O 41 r 3 of the ROC 2012. The affidavit was filed in Bahasa Malaysia without a proper jurat stating that the contents were read and explained to the Plaintiff, who is a foreign national not conversant in the national language.
[12] The Plaintiff did
