Aslam Zainuddin J:

JUDGMENT

(Enclosure 17)

[1]The defendant applied via enclosure 17 to transfer this case to the High Court at Kuala Lumpur. The application was as follows:

i.The proceedings in Civil Suit No. JA-22NCC-4-01/2022 be transferred and heard before the High Court of Malaya at Kuala Lumpur;

ii.Costs in the cause; and

iii.Any further or other relief that this Honourable Court deems fit and proper to grant.

[2]The grounds for the application were:

i.The Defendant and the potential witnesses who have allegedly taken part in the negotiation with the Plaintiff, reside in or near Kuala Lumpur;

ii.The parties’ counsel-in-charge are practicing and based in Kuala Lumpur/Selangor area;

iii.The material facts upon which the Plaintiff’s cause of action stands exist or are alleged to have occurred in or near Kuala Lumpur.

iv.The purported transfer of shares and the purported payment have taken place in or near Kuala Lumpur;

v.Physical meetings are allegedly held in the Plaintiff’s company secretarial office and PNL office, both in Kuala Lumpur;

vi.Premised on the above, the case of action and forum conveniens lies at the Kuala Lumpur High Court;

vii.The transfer of proceedings to Kuala Lumpur High Court is not prejudicial to the Plaintiff;

viii.The Kuala Lumpur High Court has the closest nexus to the dispute and it would be more fairly and conveniently to have the matter tried in Kuala Lumpur High Court; and

ix.Such other grounds as stated in the Defendant’s affidavit filed in support of this Application.

The Law

[3]Order 57 rule 1(4) ROC 2012

“(a) the High Court to another High Court of co-ordinate jurisdiction;

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 Subordinate Court which shall hear the case is located at or nearest to the place where—

(i)the cause of action arose;

(ii)the defendant, or one of the several defendants, resides or has his place of business;

(iii)the facts on which the proceedings are based exist or are alleged to have occurred;

(iv)the land the ownership of which is disputed is situated; or

(v)for other reasons it is desirable in the interests of justice that the proceedings should be transferred.”

[4]The Malaysian Civil Procedure (White Book) 2018 edition states:

“Grounds for consideration in assessing the convenient or fair forum for the case—The grounds for allowing a transfer of a matter are provided for in r 1(4)(A)-(E).

“conveniently and fairly tried”—In assessing the convenient or fair forum of the trial, matters such as where the cause of action arose, the defendant’s residence and the hardship of the parties are important factors to be taken into consideration: see Raja a/l Thangiah v Baldev Singh Bhar (Peguambela & Peguamcara Mengambil Dalam Gelaran Syarikat Baldev Singh) [2001 ] 7 CLJ 130, HC. The most important task in a transfer application is to ascertain which court has the closest nexus to the dispute: Low Long Yoong & Anor v Low Kok Choon & Anor [2013] AMEJ 0383;

The grounds for consideration in assessing the forum which is convenient or fair are set out under the Courts of Judicature Act 1964 (Act 91), s 23(1) as mirrored in r 1(4)(A)-(E). The burden is on the applicant to satisfy the court why the proceedings can be more conveniently or fairly tried in the transferee court. In this respect, the balance would tilt in favour of the party which is able to satisfy more of the criteria set out under s 23(1): see Tan Hoo Eng & 2 Ors v Lim Keck Eng & 6 Ors [2014] AMEJ 1362.

In the case of Asia Pacific Higher Learning Sdn Bhd v Eagle One Investment Ltd [2016] AMEJ 0941; [2016] 1 LNS 234, HC, the court dealt with an application to transfer or for the consolidation of two separate cases for defamation. The grounds relied on for the application in this case were that the issues to be tried, the documents that would be filed, and the witnesses that would be called for the two suits, were almost the same. The court however, w