Low Hop Bing J:

Introduction

The matter before me is an application (by way of summons in chambers) in encl. (8) wherein Lim Kong Huat Construction ("Lim") applies for an order that Luminous Crossroads Sdn Bhd ("Luminous Crossroads") do pay the sum of RM498,298 and an order for security for costs into court pending the final disposal of encl. (1) which is the notice of motion filed by Luminous Crossroads for extension of time to set aside and also to set aside an arbitration award dated 14 August 1998 ("the award").

Submission For Luminous Crossroads

In resisting Lim's application, Encik C.K. Tan, learned counsel for Luminous Crossroads submitted that in respect of payment of money into court, or any other form of security for the award, and for the costs, the principles are substantially the same.

In particular reference to the payment of the award into court or any other form of security, it was contended that Lim was using s. 24(3) of the Arbitration Act 1952 oppressively to stifle a genuine claim by Luminous Crossroads.

On the issue of security for costs, the argument advanced for Luminous Crossroads is that this is a privilege accorded only to a defendant and it is never available to a plaintiff. The matter herein was said to have originated in an arbitration proceeding, in which Lim made a claim against Luminous Crossroads and so it was submitted that Lim is the plaintiff and Luminous Crossroads, the defendant. Learned counsel relied on s. 351 of the Companies Act 1965 in support of his contention herein. He added that there is no provision of law allowing Lim as the plaintiff to apply for security for costs and that Lim's application in encl. (8) is misconceived.

Further, he submitted that security for costs can only be ordered if one of the conditions as stated in O. 23 r. 3(1)(a) to (d) of the Rules of the High Court 1980 is satisfied and he concluded that Lim has not fulfilled any of these conditions.

Submission For Lim

Encik K.L. Chang, learned counsel for Lim, is of the view that Luminous Crossroads had commenced the notice of motion before this court by using Form 9 in the Rules of the High Court 1980, in which case, Luminous Crossroads is the plaintiff while Lim is the defendant, in which case Lim is entitled to apply for security for costs under O. 23 of the Rules of the High Court 1980 and s. 351 of the Companies Act 1965 and security for the arbitrator's award under s. 24(3) of the Arbitration Act 1952. The grounds for Lim's application are as follows:

(a) the business address of Luminous Crossroads has changed;

(b) Luminous Crossroads has not submitted any accounts to the Registrar of Companies;

(c) Luminous Crossroads does not have sufficient assets; and

(d) Luminous Crossroads has not paid the arbitration costs.

In respect of the security for the arbitrator's award, he relied on s. 24(3) of the Arbitration Act 1952 and added that there would be no injustice to Luminous Crossroads.

Decision Of The Court

Security For Costs

The rules regulating security for costs in any action or proceeding are to be found in O. 23 of the Rules of the High Court 1980 which for purposes of completeness is reproduced as follows:

1. Security for costs of action, etc (O. 23 r. 1)

(1) Where, on the application of a defendant to an action or other proceeding in the High court, it appears to the court:

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

(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; or

(c) subject to paragraph (2), that the plaintiff's address is not stated in the writ or other originating process 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