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1992 MarsdenLR 417
HIGH COURT SABAH & SARAWAK KUCHING
SYKT MULTI WOOD – Appellant
Versus
FOOSAN TIMBER INDUSTRIES SDN BHD & ANOR – Respondent
[Suit No: Kg-15-1983]
[1] This is an application by the plaintiff, Syarikat Multi Wood, that this action S/KG.105/83 (action No 1) and another action S/Mr 25/1983 (action No 2) be consolidated and proceeded as one action.
[2] The defendants oppose the application.
[3] In this action the plaintiff Syarikat Multi Wood (a firm) is represented by Messrs Ting & Co and the defendants are Foosan Timber Industries Sdn Bhd and Huang Ee Hoe, both represented by Messrs Nashir Johal & Co.
[4] In action No 2, the plaintiff is Foosan Timber Industries Sdn Bhd represented by Messrs Chua, Khaider, Lim & Co and the defendant is "New Chew trading as Multi Wood Contractor (a firm)" represented by Messrs Ting & Co
[5] Thus, it is clear from the above that:
(1) the plaintiffs in the 2 actions are represented by different firms of advocates;
(2) the defendants in the 2 actions are also represented by different firms of advocates; and
(3) the plaintiff in action No 1 and the defendant in action No 2, however, are represented by the same advocate-firm.
[6] There is material which stands uncontradicted that the firm-name of "Multi-Wood Contractor" (defendant) in the title of action No 2 is erroneous and should be "Syarikat Multi Wood" that is, the same firm as the plaintiff in action No 1 (See para 6 of New Chew's affidavit affirmed on 29 November 1991). At the hearing this morning Encik Fabian Lim of Counsel for the plaintiff in action No 2 confirmed the above. In other words, it is the correct position as contended by the applicant that the plaintiff-firm in action No 1 and the firm described as the defendant in action No 2 are one and the same firm. This is also reiterated by the applicant when New Chew deposed that his firm Syarikat Multi Wood was a party in both the Miri Suit and the Kuching Suit. (See para 4 of his affidavit affirmed on 18 February 1992). That being the case, the actions are cross-actions in the sense that the plaintiff-firm in one action (action No 1) is the defendant in the other (action No 2) though in the latter action a partner is sued trading as the firm.
[7] Cross-actions, in my opinion, cannot be consolidated. In a consolidated action, the plaintiffs are in the same condition as co-plaintiffs. In the case of cross-actions this is impossible because the plaintiff in one action is the defendant in another. The same person cannot be both a plaintiff and a defendant in an action. Ellis v. Kerr [1910] ch 529 @ 537.
[8] In the instant case, since the plaintiffs in both actions are not only different but are also represented by different advocate-firms and there is no indication that they (the plaintiffs) would be represented by one advocate-firm (a situation which is virtually impossible since the 1st defendant in action No 1 is the plaintiff in action No 2), an order for consolidation will not be granted: (Lewis v. Daily Telegraph (No 2) [1964] 1 QB 601.
[9] Moreover, as it is not disputed that the plaintiff-firm in action No 1 is the same firm described as the defendant-firm in action No 2 and it is the case of the applicant that it was impracticable or impossible to counterclaim in action No 2 which was an action commenced by Foosan Timber Industries Sdn Bhd only (see para 7 of New Chew's affidavit affirmed on 18 February 1992), this is a further ground that the application should not be allowed.
[10] Having heard submissions by learned Counsel and after considering the evidence and materials before me, I am of the view that the application ought not be granted for the reasons given above.
[11] The application is dismissed with costs to the defendants.
[12] For the defendants it has been suggested that action No 1 be stayed pending the outcome of action No 2. I prefer not to make any decision on the point in this application. The matter was not fully argued. I leave it to the defendants to apply for the relief if considered fit.
