JUDGMENT

Indera Mohd Arief Emran Arifin J:

(Enclosure 23)

A. Introduction

[1] This is the application of the 2nd, 3rd, 4th and 7th Defendants for security for costs against Dato' Seri Timor Shah Rafiq ("Timor").

[2] Timor had initiated an application for leave to institute a derivative action on behalf of the Plaintiff against the Defendants, inter alia, for alleged breaches of the Defendants' duties to the Plaintiff. This application was heard by Justice Atan and on 23 May 2024 was given leave to institute these proceedings in the Civil Suit No: WA-24NCC-629-11/2023 [Dato' Seri Timor Shah Rafiq v. Nautilus Tug & Towage Sdn Bhd; [2024] 3 MLJ 433; [2024] 10 CLJ 757]. Justice Atan had made the following, inter alia, orders:

"(3) The Plaintiff be authorised to control the conduct of the derivative proceedings;

(4) The management fee payable by the Defendant to Azimuth Marine Sdn Bhd be reduced to USD 8,000.00 per month pending final resolution of the derivative proceedings initiated by the Def endant against Dato' Sri Suresh Emmanuel Abishegam, Dato' Ahmad Johari Bin Abdul Razak, Ajaib Hari Dass, Dato' Abd Latiff Bin Ahmad, Jaya Sudhir A/L Jayaram, Mak Lin Kum, Ahmad Lutfi Bin Abd Latiff, Dato' Sri Abd Rahim Bin Jaafar and Azimuth Marine Sdn Bhd.;

(5) The Defendant pays all reasonable legal fees and disbursements incurred by the Plaintiff in connection with this application or pending the grant of leave or any other interim relief on a full indemnity basis;

(6) The Defendant pays the costs incurred by the Plaintiff for the derivative proceedings to be initiated on behalf of the Defendant against Dato' Sri Suresh Emmanuel Abishegam, Dato' Ahmad Johari Bin Abdul Razak, Ajaib Hari Dass, Dato' Abd Latiff Bin Ahmad, Jaya Sudhir A/L Jayaram, Mak Lin Kum, Ahmad Lutfi Bin Abd Latiff, Dato' Sri Abd Rahim Bin Jaafar and Azimuth Marine Sdn Bhd on a full indemnity basis;"

[3] The grounds relied on by the said Defendants in seeking this application are summarized as follows:-

(i) That Timor is ordinarily out of the jurisdiction of this Court . He is a resident of California, United States.

(ii) That Timor does not have assets within the jurisdiction of this Court .

(iii) That Timor is not within a jurisdiction where the First Schedule of the Reciprocal Enforcement of Judgments Act.

(iv) That Timor is financially impecunious and is unable to pay the award of costs, if any, is granted against him.

(v) That the High Court in the Civil Suit No: WA-22NCC-151-03/2023 [Nautilus Tug & Towage Sdn Bhd v. Dato' Seri Suresh Emmanuel Abishegam & Ors; Dato' Wan Mohamed Yaccob Dato' Wan Sailadin (Third Party); [2025] 6 CLJ 623] had granted security for costs against him to the sum of RM120,000.00 for each application filed by the Defendants in those proceedings.

(vi) Indemnity orders entered by Atan J do not preclude the application for security for costs against Timor.

[4] The Defendants seek the sum of RM1,000,000.00 as security for costs.

B. Decision Of This Court

[5] After hearing parties, this Court decided to dismiss the application with no order as to costs. This Court finds that the Defendants have failed to show that the facts of this case, as disclosed in the affidavits before this Court , fall within the circumstances laid down under O 23 of the Rules of 2012. I also do not find that this Court should exercise its inherent powers under O 92 r 4 of the Rules of 2012 to provide security for costs as suggested by the said Defendants. My reasons for this decision are as stated in the following paragraphs.

C. Applicable Law — Order 23 Of The Rules Of 2012

[6] The law concerning security for costs is trite. Order 23 of the Rules of 2012 is reproduced below:-

"1. Security for costs of action (O 23 r 1)

(1) Where, on the application of a defendant to an action or other proceedings in the Court , it appears to the Court :

(a) that the plaintiff is ordinarily resident out of the jurisdiction;

(b) that the plaintiff (not being a plaintiff who is suing in a repres