Back
2020 MarsdenLR 3433
HIGH COURT (PERAK)
SU TIANG JOO, JC
Liziz Plantation – Plaintiff
Versus
Liew Ah Yong – Defendant
ORIGINATING SUMMONS NO: AA-24NCVC-82-02/2020
C.T. Tenh together with S.K. Tenh (C K Lim, Tenh & Chong) for the Plaintiff/Respondent.
Manshan Singh a/l Jeswender Singh together with Elizabeth Goh Yeek Li (Skrine) for the Defendant/Applicant.
The court determined that the application for the transfer of proceedings was not in the interest of justice, especially considering advancements in remote communication technology.
Headnote:(A) National Land Code 1965 - Sections 327 and 329 - Transfer Application - Court's jurisdiction affirmed in accordance with Article 121(1) of the Federal Constitution - Factors for transfer outlined in Order 57 of the Rules of Court 2012 were analyzed, particularly regarding convenience and interests of justice (Paras 6, 7, 30, 49).
(B) Lawful lodgment of caveats - The determination of the lawfulness of caveats requires consideration of the facts at the locus of the lands in question, rather than solely the location of the Defendant's residence or business (Paras 18, 35).
(C) Technological advancements - The rise of remote communication technology mitigates the necessity of physical presence in court, affecting considerations surrounding convenience in judicial processes (Paras 44, 49).
Facts of the case:
The Plaintiff and Defendant are in dispute regarding the lodgment of private caveats over certain lands. The Plaintiff seeks their removal, asserting wrongful entry and claiming damages under the National Land Code (Para 2).
Findings of Court:
The Court found that the Transfer Application was to be dismissed, reaffirming its jurisdiction and maintaining the case in the current court due to factors favoring judicial convenience and justice (Paras 49).
Issues: The main issues addressed were the appropriateness of the court's jurisdiction, the factors favoring the transfer of proceedings, and the implications of technological advancements in court processes (Paras 6, 21).
Ratio Decidendi: The court concluded that a transfer was unnecessary and not in the interest of justice, emphasizing that remote communication technologies allow for efficient handling of cases without requiring physical presence (Paras 44, 49).
Result: Transfer Application dismissed with costs of RM20,000.
| Table of Content |
|---|
| 1. plaintiff's interest in land and caveats (Para 2 , 3 , 30 , 31 , 32) |
| 2. jurisdiction and convenience in transfer (Para 6 , 7 , 26 , 28 , 34 , 40) |
| 3. factors for considering transfer application (Para 10 , 11 , 12 , 18 , 19 , 21) |
| 4. conclusion of judgment (Para 49 , 50) |
Su Tiang Joo JC:
JUDGMENT
[1]With the growing acceptance of remote communication technology, should the forum of the Court be changed to keep pace with where the Defendant has his place of residence or business?
Nature of action
[2]The Plaintiff filed this action on 21-2-2020 against the Defendant for inter alia an Order that private caveats lodged by the latter be removed pursuant to section 327 of the National Land Code 1965 (“NLC”). The Plaintiff claims amongst others that the entry of these private caveats was wrongful and seeks damages pursuant to section 329 of the NLC.
[3]The private caveats were lodged under Presentation Number 42/2020 dated 7-1-2020 (hereinafter referred to as the “private caveats”) over the lands held under issued documents of title PN 10052, PN 10051, HS(D) 702 Mukim Relai and HS (D) 1644, HS (D) 3928, HS (D) 3927 and HS (D) 3926 Mukim Ulu Nenggiri, Jajahan Gua Musang, Negeri Kelantan (hereinafter referred to as “the said Lands”).
The Transfer Application
[4]On 11-3-2020, the Defendant took out an application vide Enclosure 5 pursuant to Order 57 of the Rules of Court 2012 and or section 23Courts of Judicature Act 1964
[5]In dealing with the Transfer Application, references were made to the Originating Summons, the three affidavits affirmed and filed on behalf of the Plaintiff and three affidavits affirmed and filed by the Defendant with exhibits in these affidavits running into more than one thousand pages. The Affidavit in Reply affirmed by the Defendant in Enclosure 11 alone ran into 1189 pages. Both the Plaintiff and the Defendant each filed two sets of written submissions citing a total of 26 authorities.
Jurisdiction of the High Court in Malaya at Ipoh
[6]Right at the outset, it was admitted by the Defendant and rightly so, that this Court has the jurisdiction over this action bearing in mind the provisions of Article 121 (1) of the Federal Constitution on the creation of only two High Courts; one, the High Court in Malaya and the other, the High Court in Sabah and Sarawak. As was said by Lim Beng Choon J in Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd at 270 para B:-
“It is implicit that a High Court located at Penang or at Alor Setar is but a branch of the High Court in Malaya and each branch of the High Court in Malaya located in any state has concurrent jurisdiction to entertain any civil proceedings regardless of where the cause of action arose in another state.”
Grounds for the Transfer Application
[7]Order 57 of the Rules of Court 2012 (hereinafter referred to as “O 57”) relied upon by Defendant in support of the Transfer Application provides that;-
1 (1) Where the Judge of the High Court or a Judge of the Sessions Court or a Magistrate is satisfied that any proceedings in that Court can be more conveniently or fairly tried in some other Court of co-ordinate jurisdiction, he may on application by any party, order the proceedings to be transferred to the other Court.
1 (4) further goes on to provide that:
Before making any order to transfer any proceedings from –
(a) the High Court to another High Court of co-ordinate jurisdiction;
(b) ….
(c) ….
(d) …..
the High Court Judge or the Judge of the Sessions Court or Magistrate, as the case may be, shall take into consideration whether the High Court or the Subordinate Court which shall hear the case is located at or nearest the place where –
(A) the cause of action arose;
(B) the defendant, or one of several defendants, resides or has his place of business;
(C) the facts on which the proceedings are based exist or are alleged to have occurred;
(D) the land the ownership of which is disputed is situated; or
(E) for other reasons it is desirable in the interests of justice that the proceed
