The court held that while impecuniosity can be a basis for ordering security for costs, the exercise of discretion must factor in all circumstances relevant to the case.

[1] The following two appeals, namely:

(1) Civil Appeal W-02(NCC)(W)-2368-10-2012; and

(2) Civil Appeal W-02(NCC)(W)-2402-10-2012,

are scheduled to be heard together before the Court of Appeal. The hearing date is yet to be fixed.

[2] In the meantime, however, there are two notices of motion that need to be heard, namely:

(1) Enclosure 10a (under Civil Appeal W-02(NCC)(W)-2368-10-2012); and

(2) Enclosure 11a (under Civil Appeal W-02(NCC)(VV)-2402-10-2012).

[3] These notices of motions are the respondents' applications for further security for costs of the appeals.

[4] By consent of the parties, these motions were heard together on 19 April 2013. We have reserved judgment.

[5] And, now, we deliver our judgment.

[6] These notices of motion are made pursuant to s 44 of the Courts of Judicature Act 1964 and r 17(1) of the Rules of the of Appeal 1994.

[7] Section 44 of the Courts of Judicature Act 1964 provides:

Incidental directions and interim orders

44. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a judge of the Court of Appeal.

(1) Every application under subsection (1) shall be deemed to be a proceeding in the Court of Appeal.

(2) Every order made under subsection (1) may, upon application by the aggrieved party made within ten days after the order is served, be affirmed, varied or discharged by the Court.

[8]Rule 17(1) reads:

Entry of appeal

17. (1) Notices of appeal may be given by filing within the time limited for bringing the appeal four copies of the notice of appeal in the registry of the High Court at the place where the judgment, order or decision complained of was made or given by paying the prescribed fee and by lodging in Court at the same time the sum of five hundred ringgit as security for the costs of the appeal:

Provided that the Court may at any time, in any case where it thinks fit, order further security for costs to be given, and may order security to be given for the payment of past costs relating to the matter in question in the appeal:

Provided further that no deposit by way of security for costs shall be required if the appeal is brought by the Government of Malaysia or any State Government.

[9] As to the background facts, the appellant in Civil Appeal W-02(NCC)(W)- 2368-10-2012 (Ooi Meng Khin) and the appellant in Civil Appeal W-02(NCC) (W)-2402-10-2012 (Lee Pak Keong) were the Financial Controller and the Deputy Financial Controller, respectively, of the 1st respondent (the 1st plaintiff before the High Court). The respondents sued the appellants for negligence and breach of contract, alleging that the appellants, by reason of their negligence in carrying out their duties as financial officers of the respondents, and in breach of their contract of employment with the 1st appellant, had enabled the 3rd defendant (Tee Poh Kun) to defraud the respondents thereby causing financial loss to the respondents. Each of them was ordered to pay damages in the sum of RM5 million to the respondents.

[10] Dissatisfied with the decision of the High Court, the appellants have appealed to the Court of Appeal.

[11] There is only one ground advanced by the applicants/respondents for the applications for security for costs: the impecuniosity of the appellants.

[12] To support their app