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Chang Min Tat J:
This is an application by the defendants under the provisions of O. 49 r. 8(1) Rules of the Supreme Court for consolidation of the action herein with another instituted in Kuala Lumpur. The rule is couched in these words.
8(1) Two or more actions may be consolidated by order of the Court or a Judge, when such a course appears necessary or advisable.
I am satisfied on the provisions of sub-rr. (2) and (3) that the application for consolidation with the Kuala Lumpur action to be thenceforth carried on in Kuala Lumpur is properly made in Penang. The plaintiffs make no point on this but however resist the application strenuously.
The corresponding rule in England refers to consolidation by order of the Court or a Judge in the manner in use immediately before 1 November 1875, in the Superior Courts of Common Law. It has been held in Horwood v. Statesman Publishing Co. Ltd. [1929] 98 LJKB 450 CA as stated in the footnote (h) at p. 389 of Halsbury's Laws of England, 3rd Edn., Vol. 30, that this rule must be interpreted in the light of the changes of rules as to joinder of parties and causes of action. Since we have adopted these changes in our Rules of the Supreme Court, this must mean that the English law on consolidation is applicable to our Courts. So far as the practice in England is concerned, it has been summarised in the same volume of Halsbury's Laws thus:
Actions relating to the same subject matter between the same plaintiff and the same defendant, or between the same plaintiff and different defendant, or between the same plaintiff and different defendants, or between different plaintiffs and the same defendant or between different plaintiffs and different defendants may be consolidated on the application of either a plaintiff or a defendant.
If this is the practice to be adopted in our country, our local rule serves only to make clearer that an order is at the discretion of the Judge, to be exercised when such a course appears necessary or advisable. But the exercise of any discretion must of course be a judicial one and in this connection, I propose to bear in mind these words of Scrutton LJ in Horwood v. Statesman Publishing Co. Ltd., supra, which were repeated with approval by Willmer LJ in Daws v. Daily Sketch & Sunday Graphic Ltd. and Anor., Darke & Ors. v. Same [1960] 1 AllER 397 at p. 399:
The result of the later decisions is that you must look at the language of the rules and construe them liberally, and that where there are common questions of law or fact involved in different causes of actions you should include all parties in one action, subject to the discretion of the Court, If such inclusion is embarrassing, to strike out one or more of the parties. It is impossible to lay down any rule as to how the discretion of the Court ought to be exercised. Broadly speaking, where claims by or against different parties involve or may involve a common question of law or fact, bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time, the Court will allow the joinder of plaintiffs or defendants, subject to its discretion as to how the action should be tried.
It appears that apart from the Kuala Lumpur Action with which it is sought to consolidate this, there are at least two other actions, one in Singapore and the other in Hongkong, instituted by the same plaintiffs. With these latter two, I am not really concerned but the submissions touched on them and they do give a certain understanding of the action.
The plaintiffs are an American company having for its main object or one of its main objects the provision of hotel-expertise. To achieve this, they entered into agreements with various owners of hotel-buildings in many countries for running these hotels at a remuneration and for a stated term. Now there is an obvious economic advantage that these hotels though belonging
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