There are two similar applications in Civil Suit C138 of 1985 (C138) and in Civil Suit C438 of 1985 (C438). Both these applications were filed by Lorrain Esme Osman (Lorrain) who is a defendant in both civil suits.

In these applications, Lorrain is seeking the order of the Court to strike out the writs of summons and statements of claim in both civil suits on the ground that each of the statement of claim discloses no reasonable cause of action and/or is vexatious and/or is an abuse of the process of the Court. Alternatively, he is asking the Court to stay all proceedings in respect of both civil suits on the ground that the Courts of Hong Kong being the natural forum and/or forum conveniens before which the actions should be tried and the continuance of the actions before the High Court of Malaya would be vexatious and/or an abuse of the process of the Court. In C438 Lorrain is also asking the Court that, if the Court does not strike out or alternatively stay the action, the following questions or issues should be tried before all other questions or issues in the action namely:

(a) Whether the law applicable to the substantive matters in issue in

these proceedings is that of Hong Kong or Malaysia or both?

(b) Whether under the relevant law so found to be applicable:

(i) the first plaintiff (the Bank) by virtue of its holding the

majority of the shares in the second plaintiff (BMF), a company

incorporated in Hong Kong, can maintain an action for alleged wrong

done or for alleged damage caused to the property of BMF, and

(ii) by reason of the matters set out in paragraphs 56, 58 and 59 of

Lorrains statement of defence, can the plaintiffs maintain the present

action in C438.

It should be mentioned here that the additional prayers set out by Lorrain in his application in C438 are similar to those contained in the application of the second defendant, Dato Mohd: Hashim Shamsuddin (Hashim) in the same suit. Hashims application was argued before me and my judgment was delivered on September 4, 1986.

In that judgment I decided that the law applicable to the substantive matters in issue in C438 is the law of Malaysia. My decision is the same in respect of the question on applicable law raised by Lorrain.

With regard to question (b)(i), my answer is the same as that in the same judgment. In that judgment, I stated that the Bank, by virtue of its holding the majority shares in BMF could not maintain an action against Hashim for alleged wrong done or for alleged damaged caused to the property of BMF. In fact I stated that the question was irrelevant and meaningless. The Bank is not suing Hashim on the basis that it holds all the shares in BMF. Mr. Ross-Munro, counsel for Lorrain, said in his submission that he agreed with my decision on this point.

On the question of whether the plaintiffs can maintain the present application in C438, Mr. Ross Munro told the Court that he would be raising a new point which was not covered by Hashims application, namely the question of merger. I shall deal with this question later on.

I now turn to Lorrains applications to strike out the writs of summons and statements of claims in both civil suits and alternatively, for stay of proceedings on the ground that the Courts in Hong Kong being the natural forum.

Mr. T. Thomas, counsel for the plaintiffs submitted that Lorrains applications in both civil suits to strike out the writs and statements of claim and for stay of proceedings were not made promptly. He said that there was considerable delay in filing the said applications. He urged the Court that on this ground alone the applications should be dismissed.

It is necessary for me to examine the question of delay in filing the two applications. In C138, the writ was filed on January 10, 1985. On February 5, 1985, the plaintiffs filed an application to serve the writ on Lorrain by substituted service. On February 8, 1985, the S