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2022 MarsdenLR 1209
HIGH COURT MALAYA PULAU PINANG
MBIAB VENTURES SDN BHD & ANOR – Appellant
Versus
YEW SOW CHEE & ANOR – Respondent
[Civil Suit No:PA-22NCvC-119-06/2021]
The court ruled that suits must have common legal questions to consider consolidation; differing transactions and claims necessitate separate trials.
Headnote:(A) Courts Of Judicature Act 1964 – Section 25(2) – Rules of Court 2012 – Orders 4 and 57 – Application for transfer and consolidation of Two Suits – The court denied the application as the two suits did not share the same subject matter or cause of action – No judicial advantage in transferring SC Suit 46 to HC Suit 119 – SC Suit 46 can be fairly tried in Sessions Court under its jurisdiction. (Paras 73, 74)
(B)
Applicability of legal principles on transfers and consolidations – The court must determine if matters can be more conveniently or fairly tried in the court where the application for transfer is made – Parties applying for transfer bear the burden to demonstrate convenience or fairness. (Paras 14, 15)
(C)
Suit dissimilarity analysis – The facts and transactions in SC Suit 46 and HC Suit 119 are different, and the consolidation would complicate proceedings, thus the request was denied. (Paras 36, 74)
Facts of the case:
The plaintiff, MBIAB, sought to transfer Session Court Suit 46 against Miss Lim for the alleged unauthorized withdrawal of funds from its account to consolidate with High Court Suit 119, which alleged breach of fiduciary duty for failing to transfer funds into MBIAB for a joint venture project.
Findings of Court:
The Court found no commonality in issues between both suits and believed that distinct claims should be tried separately to preserve judicial efficiency.
Issues
: The court examined the similarity of subject matter, cause of action between the two suits, their respective merits, and jurisdictional appropriateness for trial.
Ratio Decidendi:
Transfer of suits is not warranted absent common issues; the court emphasized that both suits address different financial transactions and legal duties, which do not merit consolidation.
Result:
Application to transfer and consolidate is dismissed. (Paras 72, 75)
JUDGMENT
(Second Defendant's Application To Transfer And Consolidate)
Prelusion
[1] The 2nd Defendant (Miss Lim) applies to transfer the Session Court Suit No PA-B52NCVC-46-05/2021 (SC Suit 46), to be consolidated and heard together with this High Court Suit (HC Suit 119). Should I grant the Order to do so?
[2] Miss Lim puts forth four reasons for asking for this Order:
(i) SC Suit 46 has the same subject matter as HC Suit 119;
(ii) SC Suit 46 has the same cause of action as HC Suit 119;
(iii) to transfer SC Suit 46 to be consolidated and heard with HC Suit 119 will save time and costs for everyone concerned;
(iv) the transfer and consolidation will avoid a duplicity of suits.
[3] I will first glean the applicable law that guides me.
The Law On Transfers
[4] I will call Miss Lim's application: the Application to transfer and consolidate. She makes her Application to transfer and consolidate under O 57 r 1 (re transfer) and O 4 r 1 (re consolidation) of the Rules Of 2012 ( ROC ).
[5] I will start with the Courts Of Judicature Act 1964 (CJA). Sub-section 25(2) and the Schedule (para 12) of the CJA empower the High Court to transfer a Subordinate Court proceeding to the High Court. And this power to transfer is to be exercised in the manner prescribed by the Rules of Court.
[6] I set out sub-section 25(2) and the Schedule (para 12) of the CJA here:
Section 25 . Powers of the High .
(1) Without prejudice to the generality of art 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.
(2) Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule:
Provided that all such powers shall be exercised in accordance with any written law or rules of Court relating to the same.
SCHEDULE
[Subsection 25(2)]
ADDITIONAL POWERS OF HIGH Court
12. Transfer of proceedings
Power to transfer any proceedings to any other Court or to or from any subordinate Court, and in the case of transfer to or from a subordinate Court to give any directions as to the further conduct thereof:
Provided that this power shall be exercised in such manner as may be prescribed by any rules of Court.
[Emphasis Added]
[7] The Rule of Court that provides for transfers is O 57.
[8] The applicable portions of O 57 r 1 state this:
Order 57. Transfer of proceedings
Transfer of proceedings to another Court (O 57, r 1)
1. (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.
(2) A transfer of any proceedings from:
(a) a Subordinate Court to the High Court; or
(b) the High Court to a Subordinate Court,
shall only be made by an order of that High Court Judge on application by any party by originating summons or notice of application, whichever is appropriate.
.
.
(4) Before making any order to transfer any proceedings from:
(a) the High Court to another High Court of co-ordinate jurisdiction;
(b) a Subordinate Court to the High Court;
(c) the High Court to a Subordinate Court; or
(d) 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:
(A) the cause of action arose;
(B) the defendant, or one of the 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;
(D) the land the ownership of which is disputed is situated; or
(E) for other reasons it is desirable in
