The Malaysian Court has jurisdiction to hear cases involving allegations of fraud and misrepresentation, even when arbitration clauses exist, and service by courier is deemed valid.

JUDGMENT

(Enclosures 11, 13, 15 And 25)

Su Tiang Joo J:

Introduction

[1] The four applications under consideration by this Court raised a short and important point on what is the consequence when a party enters an appearance to the action even though the party received the Writ by courier service instead of being served personally or by A.R. Registered Posted in accordance with O 10 r 1(1) of the Rules of 2012.

Salient Background Facts

[2] In this action, save for Marion Fischer, Passport No: F0902867 (the 73rd plaintiff) who is a foreigner residing in Malaysia and AJP Properties Sdn Bhd, No Syarikat: 116998-K (the third plaintiff) and Meru Saga Sdn Bhd, No Syarikat: 301239-T, (the 152nd plaintiff) which are both private limited companies registered in Malaysia, all the other plaintiffs are Malaysian individuals.

[3] All the 173 plaintiffs (collectively referred to as "the Plaintiffs") entered into an agreement with Asia Plantation Capital Pte Ltd (the first defendant which shall be referred to as "D1"), a private limited company registered in Singapore to invest in a scheme where Agarwood trees are to be planted in Thailand before they are to be harvested and sold ("Agarwood Scheme"). D1 is the leasehold owner of the plantation in Thailand. Under the Agarwood Scheme the plaintiffs were to secure guaranteed returns to be calculated premised upon a prescribed formula under their respective agreements based upon the number of Agarwood trees they purchased.

[4] Payments were made by the Plaintiffs to Asia Plantation Singapore Pte Ltd, No Syarikat: 201106988E, Singapore (the second defendant which shall be referred to as ("D2"), a company registered and having its place of business in Singapore.

[5] Neilson Navin a/l Anthony Aloysius (the 11th defendant) and Chong Wai Chee (the 18th defendant) were agents for the sale and marketing agents of D1 through APS Asia Plantation Bhd (the third defendant) and Forestry First Sdn Bhd (the ninth defendant).

[6] The Plaintiffs claim that they invested in the Agarwood Scheme as a result of fraudulent misrepresentations made by the defendants who had individually or in combination amongst them conspired to injure them. They also allege that the Agarwood Scheme is tainted with illegality the particulars of which for purposes of this judgment, need not detain us.

[7] The respective agreements that the plaintiffs entered into with D1 each has a clause which provides that in the event of any dispute, the matter is to be resolved by way of arbitration (the "Arbitration Agreement").

[8] A judgment in default of appearance has been obtained against D1 on 7 January 2021. D1 had gone into liquidation, and on 11 April 2023, learned counsel acting for the liquidator withdrew D1's application (Enel 174) to set aside the judgment in default of appearance. Thus, the judgment against D1 (Enel 161) which is reproduced hereunder remains valid:

Challenge To Jurisdiction Of The Court , Applications To Set Aside The Service Of The Writ Or To Stay The Action Pending Arbitration

[9] Five applications were made by diverse defendants to challenge the jurisdiction of this Court , and to have the service of the Writ upon them set aside due to irregular service of the Writ, or that the action be stayed pending arbitration. These applications were:

i) Enclosure 11 by the 18th defendant ("D18");

ii) Enclosure 13 by Asia Plantation Capital Bhd who is the fourth defendant ("D4");

iii) Enclosure 15 by Steven Malcolm Watts who is the sixth defendant ("D6");

iv) Enclosure 23 by Neilson Navin a/l Anthony Aloysius who is the 11th defendant ("D11"); and

v) Enclosure 35 by Chong Wei Kiong who is the 19th defendant ("D19"). However, D19's application was withdrawn and struck out on 23 May 2023 with costs of RM2,000.00 subject to allocatur to be paid by D19 to the Plaintiffs.

[10] In summary, the applications were premised on three grounds NAMEly:

i) that the Writ had not been duly served upon them;

ii) that by reason of forums inconvenience, this C