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2022 MarsdenLR 2468
HIGH COURT MALAYA SHAH ALAM
DONNA LAU SHAN SHAN – Appellant
Versus
CHRISTINA MEI MEI NG & ANOR – Respondent
[Civil Suit No: BA-23CY-9-09-2021]
The court upheld that each suit must be assessed individually for transfer, emphasizing the distinct nature of claims and the necessity of fairness in proceedings.
Headnote:(A) Courts of Judicature Act 1964 – Section 23(1) – Rules of Court 2012 – Order 57 – Transfer of proceedings – Defendants applied to transfer Suit 9-09 to Kuala Lumpur High Court based on overlapping facts with Suit 425 – Plaintiff objected, asserting closest nexus to dispute exists at current court – Court dismissed application citing distinct nature of suits not warranting consolidation. (Paras 21-30)
(B) Forum Conveniens – Judicial consideration on transfer of proceedings rests on convenience and fairness to parties involved – Each case must be assessed individually on its own facts. (Paras 19 and 25)
Facts of the case: The plaintiff, a former employee of a development company, sought damages for defamation against the defendants related to allegations published within a community group. The defendants argued for consolidation with a related suit, Suit 425, involving multiple parties and alleged misconduct. (Paras 5-14)
Findings Of Court: The court found no significant overlap between the suits; thus, transfer was unwarranted as Suit 9-09 remains distinct and should be heard in its own right to prevent prejudice to the plaintiff. (Paras 26-30)
Issues: Whether the claims in Suit 9-09 could justifiably be addressed in conjunction with Suit 425 given the claim's unique nature and relief sought. (Paras 25 and 28)
Ratio Decidendi: Court ruled that for a transfer to occur the overlap must be substantial, which in this case was not proven, hence upholding jurisdiction at the current court. (Paras 23-25)
Result: Application dismissed with costs of RM 5,000.
JUDGMENT
Introduction
[1] This is the defendants' application pursuant to O 57 and/ or Order 4 of the Rules of 2012 and/ or the inherent powers of the Court seeking the following orders:
"(i) the proceedings herein be transferred to Kuala Lumpur High Court WA-22NCVC-425-06-2021 (Suit 425) for further directions to be given on the conduct of this matter together with Suit 425, including whether it should be heard together or one after another and/ or other consequential orders to be dealt with by the learned High Court Judge Yang Arif Quay Chew Soon;
(ii) Pursuant to O 18 r 2 of the Rules of 2012 that the filing of the defence in the matter herein be suspended pending further directions from the learned High Court Judge Yang Arif Quay Chew Soon;
(iii) The costs of this application be made costs in the cause;
(iv) such further or other orders or directions be given or made as this Honorable Court deems fit and proper in this circumstances."
[2] At the outset learned counsel for the defendants made an oral application to amend prayers (i) and (ii) of the application. Prayers (i) and (ii) are to read as follows:
(i) the proceedings herein are transferred to Kuala Lumpur High Court WA-22NCVC-425-06-2021 (Suit 425) to be dealt with by the learned High Court Judge Yang Arif Puan Hayatul Akmal Binti Abdul Aziz.
(ii) Pursuant to O 18 r 2 of the Rules Of 2012 the filing of the defence in the matter herein be suspended pending further directions from the learned High Court judge Yang Arif Puan Hayatul Akmal Binti Abdul Aziz.
[3] The plaintiff did not object to the oral application to amend the said prayers and the oral amendments were allowed. However, the plaintiff had objected to the application to transfer the proceedings.
[4] At the time this application was heard the defendants have not filed their Statement of Defence.
Background Facts
[5] The plaintiff was the former employee of Tetap Tiara Sdn Bhd, the developer of Jaya One, a stratified integrated mixed commercial development located in Seksyen 13, Petaling Jaya, from the year 2005 to 2006. The plaintiff is also the owner of parcel R1.11G, The Residences, Jaya One, 72A, Jalan Prof DiRaja Ungku Aziz, 46200 Petaling Jaya.
[6] The defendants are the owners of parcel 57-1, Block D, Jaya One and parcel 63-3, Block D, Jaya One respectively.
[7] The defendants are seeking an order to transfer this suit BA-23CY-9-09-2021 (Suit 9-09) to the High Court at Kuala Lumpur to be heard before the learned High Court Judge Her Ladyship Hayatul Akmal Abdul Aziz J hearing the civil suit WA-22NCVC-425-06-2021 (Suit 425), including obtaining incidental directions thereafter for both actions to be heard together or for the actions to be heard one after the other.
[8] The defendants contended that there are overlapping facts between Suit 9-09 and Suit 425 which involve the same facts from the same series of transactions. Therefore, Suit 9-09 would be more conveniently or fairly tried by the judge hearing Suit 425 as the said judge would be equipped with the complete facts concerning the Jaya One litigation.
Suit 425
[9] Suit 425 was filed by a group of parcel proprietors of the Jaya One development including the defendants for inter alia, misappropriation of funds from the maintenance and sinking fund accounts of Jaya One, breach of fiduciary duties, car park rental and conflict of interest dealings against the developer, the past and present members of the Joint Management Body (JMB) and the Management Corporation (MC), the former property manager namely Jaya One Management Sdn Bhd (JOMSB) and also all other persons and/ or entities related to JOMSB and/ or the wrongdoings. The reliefs sought in Suit 425 in para 79 are as follows:
"(A) Judgment in the sum of RM4,099,740.00 or any another other sum adjudged by this Honorable Court to be paid by JOMSB, Tetap Tiara, Wong Chee Kooi and Charles Wong (the 4th, 2nd, 7th and 8th defendants) jointly and severally, to the MC (the 1st defendant) in respect of the w
