Security for costs requires a discretionary assessment of all circumstances, not solely the plaintiff's residency status or property ownership.

JUDGMENT

Mohd Radzi Harun J:

Introduction

[1] Encl 11 is the application by the Defendants (in the original suit) pursuant to 0 23 r 1 (a) of the Rules of 2102 ("ROC") for the Plaintiff to provide security for costs at RM80,000 until the final disposal of the Suits.

[2] I had allowed the application with costs ordered to be in the cause. The Defendants are aggrieved by that decision and filed this appeal.

[3] The following are my grounds in coming to such decision.

Finding

[4] The source of power for this Court to entertain an application for security for costs is provided in O 23 r 1(1) of the ROC which provides:

"23. (1) Where, on the application of a defendant to an action or other proceedings in the Court, it appears to the Court-

(a) that the plaintiff is ordinarily resident out of jurisdiction;

(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;

(c) subject to paragraph (2), that the plaintiff's address is not stated in the writ or originating summons or is incorrectly stated therein; or

(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then, if having regard to all the circumstances of the case, the Court thinks it just to do, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just.".

[5] It is not disputable that whilst O 23 r 1 sets out the situations under which Court would consider the grant of an application for security for costs, the key phraseology in that provision is "then, if having regard to all the circumstances of the case, the Court thinks it just to do". By that phrase, this Court is granted with unperturbed discretionary power to allow an application for security for costs, having regard to all the circumstances of the case as the Court thinks just.

[6] That provision followed the oft-cited principle laid down by Lord Dening MR in Sir Lindsay Parkinson & Co Ltd v. Triplan Ltd [1973] 2 All ER 273 where His Lordship held:

"The Court has a discretion which it will exercise considering all the circumstances of the particular case. So I turn to consider the circumstances. Mr Levy helpfully suggests some of the matters which the Court might take into account, such as whether the company's claim is bona fide and not a sham and whether the company has a reasonably good prospect of success. Again it will consider whether there is an admission by the defendants on the pleadings or elsewhere that money is due. If there was a payment into Court to get rid of a nuisance claim, that, too, would count. The Court might also consider whether the application for security was being used oppressively - so as to try stifle a genuine claim. It would also consider whether the company's want of means has been brought about by any conduct by the defendants, such as delay in payment or delay in doing that part of the work".

[7] Lord Denning went on to enumerate the circumstances that Courts might take into account in determining an application for security for costs, which are:

"... (a) whether the company's claim is bona fide and not a sham;

(b) whether the company has a reasonably good prospect of success;

(c) whether there is an admission by the defendants on the pleadings or elsewhere that money is due;

(d) if there was payment into Court of a substantial sum of money (not merely a payment into Court to get rid of a nuisance claim);

(e) whether the application for security was being used oppressively - so as to try and stifle a genuine claim;

(f) whether the company's want of means has been brought about by any conduct of the defendants, such as delay in payment or delay in doing their part of the work. "

[8] The enumerations of situations or circumstances in His Lo