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2022 MarsdenLR 2055
HIGH COURT MALAYA TAIPING
SUPREME INFINITY LAND SDN BHD – Appellant
Versus
PASIR BOGAK INDAH SDN BHD – Respondent
[Civil Suit No: AB-22NCVC-29-12/2020]
Consolidation of suits requires a common question of law or fact; differing stages and complexity can negate this necessity.
Headnote:(A) Malaysian Civil Procedure Code 2021 – Order 4 Rule 1 – Consolidation of suits – Plaintiff's application to consolidate two suits dismissed as the claims involved different issues not satisfying the criteria for consolidation. The decision was based on the interests of justice and procedural complexity. (Paras 14, 19)
(B) Interests of Justice – Courts must ensure consolidation does not prejudice parties involved, emphasizing the necessity of fairness in legal procedures. (Para 18)
Facts of the case: The plaintiff sought to consolidate two related suits involving property transactions tainted by allegations of fraudulent misrepresentation and outstanding payments. The suits had significant overlaps but differed fundamentally in their causes of action.
Findings of Court: The court found the criteria for consolidation under the Malaysian Civil Procedure Code was not met, leading to the dismissal of the application.
Issues: The main issues were whether the suits involved common questions of law or fact and the implications of consolidating cases at different procedural stages.
Ratio Decidendi: The court articulated that consolidation could complicate matters and was not in the best interests of justice, especially considering the different stages of litigation and the number of parties involved. (Para 20)
Result: Application for consolidation dismissed with costs.
JUDGMENT
(Application For Consolidation Of Actions)
Introduction
[1] The Plaintiff made an application to consolidate this Civil Suit No: AB-22NCVC-29-12/2020 ("this suit") with Civil Suit No: AB-22NCVC-8-03/2021 ("the other suit") in encl 25 dated 5 August 2021 which will also be heard before this Court. Enclosure 25 was heard on 15 June 2022 and the decision was delivered on 27 July 2022 wherein the application was dismissed with costs. On 22 August 2022 the Plaintiff filed a Notice of Appeal against this Court's decision. The Court now gives its reasons for dismissing the application.
Background Of The Case
[2] This suit arose pursuant to a transaction involving the purchase by the Plaintiff of a piece of property registered under Geran 55417, Lot 41,'Pekan Pasir Bogak, Daerah Manjung, Negeri Perak ("the said Property") owned by the Defendant that was sold under a Sale and Purchase Agreement ("the SPA") dated 4 February 2020 with an initial purchase price of RM13,000,000. The parties entered into another agreement on the same day to vary the purchase price and it was increased to RM14,500,000. The title of the land was transferred to the Plaintiff although only partial payment of the purchase price was made. Later a land search was conducted by the Plaintiff and it found that the Express Condition and Category of Land Use had been changed to "Nil" instead of "Residence" and "Building", respectively. Therefore, the Plaintiff alleged that the Defendant had fraudulently misrepresented to the Plaintiff in that regard and it (the Plaintiff) had relied on the fraudulent misrepresentation when it decided to purchase the property. The Plaintiff filed this suit in December 2020.
[3] The other suit was filed by the Defendant in March 2021 in respect of the same property to recover the outstanding amount due to it totalling RM9,615,000, inclusive of interests, from the Plaintiff (which is the 6th Defendant in that action). In that other suit, the Plaintiff along with 7 other parties were named as Defendants. The Plaintiff counter-claimed against the plaintiff in that suit (the Defendant) for failure to give vacant possession since the property was purportedly not free from encumbrances. On 26 November 2021, the Plaintiff's application to bring in Third Parties was allowed by the previous Judicial Commissioner in the other suit. The Third Parties comprise of 7 individuals whom are directors and shareholders of the Defendant in the present suit.
The Hearing
[4] The affidavits and cause papers for this application were as follows:
4.1 The Afidavit Sokongan affirmed by Ong Chin Wei on 4 August 2021 (Enclosure 26);
4.2 The Afidavit Balasan affirmed by Tan Huang Hoe on 3 September 2021 (Enclosure 27);
4.3 The Afidavit Jawapan affirmed by Ong Chin Wei on 9 September 2021 (Enclosure 28);
4.4 The Afidavit Balasan Tambahan affirmed by Tan Huang Hoe on 3 September 2021 (Enclosure No 29);
4.5 The Afidavit Jawapan Plaintif (2) affirmed by Ong Chin Wei on 29 September 2021 (Enclosure 30);
4.6 The Afidavit Balasan Tambahan affirmed by Tan Huang Hoe on 12 October 2021 (Enclosure 31);
4.7 The Afidavit Jawapan Plaintif (3) affirmed by Ong Chin Wei on 25 October 2021 (Enclosure 32);
4.8 The Pernyataan Tuntutan Terpinda Terpinda dated 4 April 2022 (Enclosure 44);
4.9 The Pembelaan Terpinda Dan Tuntutan Balas Terpinda dated 13 April 2022 (Enclosure 45); and
4.10 The Jawapan Terpinda Dan Pembelaan Terpinda Kepada Tuntutan Balas Terpinda dated 28 April 2022 (Enclosure 47).
[5] The reasons put forth in support of the Plaintiffs application were that:
i. both suits were premised on the same property in dispute and sales and purchase agreement as well as other related agreements;
ii. the Plaintiff has a valid claim and counterclaim against the Defendant and if these were proved, then the Plaintiff need not pay the alleged outstanding amount to the Defendant;
iii. both suits involve the same witnesses; and
iv. by having the suits consolidated and heard togeth
