Augustine Paul J:

The plaintiff is a licensed stockbroker with its registered address at No 171, Jalan Bunga Raya, 75100 Melaka. The defendant, whose last known address was at No 23, Persiaran Syed Putra, 50460 Kuala Lumpur, operated an account with the plaintiff and used its services for transacting in shares. The plaintiff's action against the defendant, filed in the High Court in Malaya at Melaka, is for the sum of RM3,509,323.29 and interest due on his account arising from share transactions. The defendant denied the claim and contended that the amount due arose as a result of collusion between the plaintiff and one Lim Teck Meng who had used his account for the purchase of shares thereby incurring the debt. The defendant brought a counterclaim against Lim Teck Meng pursuant to O. 15 r. 3 of the Rules of the High Court 1980.

On 26 January 1998 the defendant filed an application to have this action transferred to the High Court in Malaya at Kuala Lumpur based on s. 23(1)(a) and (b) of the Courts of Judicature Act 1964 ("the CJA") . In his affidavit in support of the application he affirmed that his address is in Kuala Lumpur and that he works in Petaling Jaya, Selangor. Thus, he said, the trial of the action in Melaka would inconvenience him and cause him a greater expenditure as he and his witnesses are from Kuala Lumpur. In opposing the application the plaintiff affirmed in its affidavit-in-reply that the defendant used its services to carry out his share transactions in Melaka and that the cause of action arose in Melaka. The plaintiff further said that as its witnesses would be from Melaka the appropriate forum to hear the action ought to be the High Court in Malaya at Melaka. The application was heard on 20 April 1998. Learned counsel for the defendant repeated what had been affirmed in the affidavit by the defendant. He also said that the cause of action arose in Kuala Lumpur. As such, he contended, this action should be heard in the High Court in Malaya at Kuala Lumpur in accordance with s. 23(1) of the CJA . In support of his argument he referred to cases such as Fung Beng Tiat v. Marid Construction Co [1997] 2 CLJ 1; [1996] 2 MLJ 413 ; Dayasar Corp. Sdn. Bhd. V. C.p. Ng & Co. Sdn. Bhd. [1990] 2 CLJ 11; Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268; Tung Lian Enterprise v. Poly Trading Company [1993] 4 CLJ 189 and Khor Seow Kee v. Boon Hock Sawmill Sdn Bhd [1993] 4 CLJ 365 . In his reply learned Counsel for the plaintiff contended that the cause of action arose in Melaka and, accordingly, the High Court in Malaya at Melaka is the appropriate forum to hear this action. In support of his argument he referred to Bank Bumiputra Malaysia Bhd v. Melewar Holdings Sdn Bhd & 4 Ors [1990] 1 CLJ 1246 and Megayacht Sdn. Bhd. V. Hong Leong-lurseen Shipyard (1992) Sdn. Bhd. [1997] 2 BLJ 48 2 CLJ Supp 48 .

It is my view that cases relating to transfer of proceedings in the subordinate courts, relied on by both counsel, are not relevant to their submissions on the law relating to a similar issue in the High Court. Before I proceed any further it is first necessary to consider the scope of the power of a High Court to transfer a proceeding pending before it to another High Court. The starting point is Art. 121 of the Federal Constitution which reads as follows:

There shall be two High Courts of co-ordinate jurisdiction and status, namely:

(i) one in the States of Malaya, which shall be known as the High Court in

Malaya and shall have its principal registry in Kuala Lumpur; and

(ii) one in the States of Sabah and Sarawak which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine.

The civil jurisdiction of the two High Courts is governed by s. 23(1) of the CJA which reads as follows:

Subject to the limitations contained in art. 128 of the Constitution the High Court shall hav