Jurisdiction under Order 57 of the Rules to transfer proceedings between courts of co-ordinate jurisdiction is limited; transfer is impermissible without consolidation of cases.

JUDGMENT

Ong Chee Kwan JC:

Introduction

[1] This is an application ('Enclosure 13') filed by the Plaintiffs to transfer the proceedings before this Court under O 57 r 1 of the Rules of 2012 ('the Rules') and s 25(2) of the Courts Judicature Act 1964 ('CJA').

[2] More specifically, the Plaintiffs sought to transfer the proceedings in this Suit ('Suit 395') to the Commercial Court NCC6, Kuala Lumpur to be heard before the Judge hearing the Suit No: WA-22NCC-216-05/2021 ('Suit 216').

[3] The primary reasons given by the Plaintiffs for the transfer are that both Suit 395 and Suit 216 share common background facts and that it is necessary for all facts and issues in disputes arising from both the Suits to be heard before the same forum for an effectual and complete determination to avoid any inconsistent finding of facts by two different Courts of coordinate jurisdiction.

Background Facts

[4] In Suit 395, the Plaintiffs' claims are based on various causes of action against the 1st dan 2nd Defendant, namely:

(a) breaches of fiduciary and/or statutory and/or common law duties owed to the Plaintiffs;

(b) fraud and breach of trust, knowing receipts and dishonest assistance;

(c) conspiracy to injure, aiding, abetting, unlawful interference and tort of abuse of process with the intention to injure the Plaintiffs;

(d) breach of confidence.

[5] The 1st Defendant, Lee Quan Yoong ('LQY') is sued in her capacity as the executor of Koh Peng Guan ('KPG'). The 2nd Defendant, Koh Siew Loon ('KSL') is sued in her capacity as the financial controller, accounting manager, finance manager and the head of the accounting department of the Plaintiff, Koh Heng Jin Holdings Sdn Bhd ('KHJH').

[6] The Plaintiff then filed this application on 17 November 2021 claiming that as at the date of the filing of Suit 395, an oppression action under Suit 216 was already pending before the High Court at Kuala Lumpur Commercial Court NCC 6, which is within the same Division of this Court.

[7] Suit 216 is an oppression action filed on 10 May 2021 by the late KPG who alleged that his interests and rights as a minority shareholder in KHJH, have been unfairly prejudiced by reason of a series of oppressive and prejudicial acts by Wong Nyet Fah ('WNF') and Kong Peng Chye ('KPC') acting in their capacity as directors of KHJH. KPG had passed away on 2 December 2020 while the action was still ongoing and LQY has taken over the action replacing KPG as the executor of KPG's estate.

[8] Suit 216 was initially filed by way of Originating Summon under Suit No WA-24NCC-382-08/2020 ('Suit 382') on 27 August 2020 pursuant to s 346 of the Companies Act 2016 (' CA 2016'). However, on 6 May 2021, the learned Judge had allowed the Suit 382 to be converted to a Writ action and renumbered as Suit 216 upon the application of WNF on the ground, inter alia, that the allegations of facts ning over a period of 40 years in the past require examination of oral evidence from the relevant individuals with the requisite knowledge ('the Conversion Order').

[9] Currently, the Conversion Order is pending appeal before the Court of Appeal.

Counsel's Contentions

[10] The Plaintiffs contended that the transfer of the present proceedings to NCC2 will avoid inconsistent finding of facts by 2 different judges. In this regard, it was contended that the factual allegations pleaded by the Plaintiffs in the Statement of Claim in Suit 395 substantially overlap with the allegations of oppression raised in Suit 216. More specifically, learned counsel for the Plaintiffs referred to the fact that LQY had reproduced a substantial part of the facts from affidavits filed in Suit 216 in the Defence filed in Suit 395. This supports the substantial overlap of the facts between the 2 Suits.

[11] On the contrary, learned counsel for the 1st Defendant contended that this application is completely lacking in merits, uncalled for, unjustified and an abuse of Court process as it amounts to forum shopping.

[12] Contrary to the Plaintiff's contentio