The court may require a plaintiff to provide security for costs if they are a foreign national and lack assets in the jurisdiction, ensuring the defendant's protection in case of non-recovery.

JUDGMENT

Julie Lack JC:

[1] This is the Defendant's application pursuant to O 23 r 1 of the Rules of 2012 ( ROC ) /and/or the inherent jurisdiction of the Court for the following prayers:

1. That the Plaintiff be ordered to give security for costs to the Defendant in the sum of RM150,000 or any other amount which the Court will deem fair and reasonable to be deposited into Court within 7 days from the date of the order;

2. All proceedings be stayed pending the disposal of this application until the compliance of prayer 1 as above;

3. If the Plaintiff fails to furnish security for costs, the Writ and the Statement of Claim be struck off;

4. Costs of this application be paid by the Plaintiff to the Defendant immediately; and

5. Any order and/or relief deemed fit and proper by this Court.

[2] The relevant cause papers in respect of the Defendant's claim are:

(i) The Notice of Application dated 27 September 2019 (Encl 5)

(ii) The Defendant's Affidavit in Support dated 27 September 2019 (Encl 6)

(iii) The Plaintiff's Affidavit No 1 dated 21 October 2019 (Encl 7)

(iv) The Defendant's Affidavit in Reply dated 5 November 2019 (Encl 8)

Background

[3] The Plaintiff is a citizen of China but has an address in Jalan Cheras, Selangor. The Plaintiff filed this claim against the Defendant for damages occasioned by defamatory words allegedly published by the Defendant in a Whatsapp group message about the Plaintiff on 12 January 2019. The Plaintiff also prayed for an injunction to restrain the Defendant from publishing the defamatory words.

[4] At the material time both the Plaintiff and the Defendant were founding members of an association known as Persatuan Artis Asia, Malaysia (PAAM) inter alia to advance the level of art within Asia and Malaysia by organising artistic activities and exhibitions to promote interaction between the artistic communities within Asia and Malaysia. The Plaintiff was secretary general while the Defendant was appointed the president of PAAM. The Plaintiff states she IS a renowned artist and painter from Qingdao China and has been active in the art community in China for the past 30 years and in Malaysia for the past 19 years. The Plaintiff claims to be one of the top 500 painters in China.

[5] In the Statement of claim it is stated that the Plaintiff regularly travels to Malaysia as she is a participant under the Malaysia My 2nd Home Scheme. The relationship between the Plaintiff and the Defendant became strained after they under the auspices of PAAM became joint organizers of an art exhibition called the 9th Art Exhibition in China sometime in late 2017(Qingdao Exhibition).

[6] The Plaintiff claimed that the Whatsapp messages were published to and received by all the members of PAAM that were participants in the chat group.

Reasons For The Application

[7] The Defendant's reasons for the application are that:

(i) That the Plaintiff is a citizen of China and IS not ordinarily resident in Malaysia or subject to the jurisdiction of this Honourable Court;

(ii) The Plaintiff does not have any assets within the jurisdiction of this Court and it is an established fact that China is not a member country that subscribes to the Reciprocal Enforcement of Judgment Act 1958 and hence there may be a risk of inability to recover costs if she evades the consequences of the litigation;

(iii) The amount of RM150,000 sought as security for costs is a reasonable sum and will not prejudice the Plaintiff; and

(iv) There is no delay in making this application.

[8] Plaintiff's Contention opposing the application:

(i) The Plaintiff is not ordinarily resident out of jurisdiction;

(ii) The Plaintiff has an arguable and bona fide claim; and

(iii) That if ordered, the security for costs furnished would be oppressive on the Plaintiff.

Findings Of The Court

[9] Order 23 r 1 ROC governs applications for security for costs. It provides as follows:

(a) The Plaintiff is ordinarily resident out of the jurisdiction; or

(b) .........

(c) .........

(d) ..........

[10] Then, if, havin