JUDGMENT

Azizul Azmi Adnan JCA:

Introduction

[1] The appellant, which was the plaintiff in the court below, made an application for its writ action to be transferred to another court, which was hearing another suit in which the appellant was a defendant, and for the two proceedings to be consolidated. This application was refused by the High court,against which decision the appellant now appeals.

[2] The High court was of the view that the application was a mere tactical manoeuvre, and therefore an abuse of the process of court. Furthermore, the court found that the transfer would not result in any savings of time or costs, due to the differing nature of the two suits.

Material Facts

[3] The material facts are not in dispute.

Suit 786

[4] The appellant plaintiff, CJ Polymers Sdn Bhd (referred to in this judgment variously as "CJ Polymers" or the "Company"), commenced a writ action (Suit 786) against Kerk Han Meng and Sim Chin Hu, who are its former directors. The plaintiff alleged, among others, that Mr Kerk and Mr Sim had undertaken certain transactions which it considered dubious and/or tainted with fraud and dishonesty. It was alleged that, as a result of these transactions, more than RM9 million had been misappropriated from the Company. It was also alleged that some of the sums misappropriated were subsequently used by Mr Kerk and Mr Sim to subscribe for shares in the Company pursuant to a rights issue. The Company claimed, among others, for the return of the sums misappropriated, as well as interest representing the opportunity costs arising from the loss of use of such funds.

[5] The specifically pleaded causes of action against Mr Kerk and Mr Sim encompassed fraud, breach of fiduciary duties and conspiracy to injure.

OS 547

[6] Mr Kerk commenced an oppression action pursuant to s 346 of the Companies Act 2016 through an originating summons filed at NCC2 of the High court at Kuala Lumpur (OS 547). The defendants in the action were the other shareholders in the Company as well as the Company itself. Mr Kerk alleged (among others) that Ms Lee Yu Meng, another director and shareholder in the Company (who is the first defendant in OS 547), had unilaterally removed him as a director, and that this constituted an act of oppression, as it breached his legitimate expectation to participate in the management of the Company. Mr Kerk averred that Ms Lee held her shares in the Company as nominee for the second defendant, Mr Kua Chin Wee.

[7] One the defendants in OS 547 successfully applied for the cross-examination of the deponents of affidavits in that case. Trial for this purpose has been fixed for 10-13 November 2025.

The Jurisdiction Point

[8] In the present case, the learned High court judge appeared to accept that he was seised with the jurisdiction to order consolidation under O 4 r 1 of the Rules of 2012, but he found that, on the merits of the application, there was no common issue arising in both suits that warranted an order for consolidation. Although there was no appeal by the respondents on the finding of jurisdiction, we consider it appropriate that we address this point here, as it is an issue of adjectival law of some importance.

[9] In Kerajaan Negeri Kelantan v. Petroliam Nasional Bhd & Anor; [2011] 6 CLJ 649 the plaintiff made an application to re-transfer the action from the civil division of the High court at Kuala Lumpur to the commercial division of the same court. The suit had initially been commenced in the commercial division, but had been transferred administratively by the managing judge of the commercial division to the civil division pursuant to Practice Direction No 1 of 2008. The plaintiff then applied for the case to be re-transferred to the civil division.

[10] The decision in that case centred around the proper construction of Item 12 of the Schedule to the Courts of Judicature Act 1964, read together with s 25(2) of the same Act.

[11] Section 25 of the Courts of Judicature Act 1964 reads as follows:

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