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2026 MarsdenLR 1451
HIGH COURT MALAYA KOTA BHARU
SHAMSUL BAHRIN ABDUL MANAF, JC
MOULAY MOHAMED AMINE OURADJ EL HASSANI – Appellant
Versus
DATO HAJI CHE MOHD RAHIM HAJS JUSOH & ORS – Respondent
[Civil Suit No: DA-21 NCvC-13-12/2022]
The court has the judicial discretion to order security for costs against a foreign plaintiff residing outside the jurisdiction with no local assets, provided such an order is just after considering all circumstances, including the risk regarding the enforcement of future costs orders.
Headnote:(A) Rules of Court 2012 - Order 23 rule 1 - Security for costs - Foreign plaintiff - Discretion of Court - The court has a broad judicial discretion to order security for costs where it appears just to do so, having regard to all the circumstances of the case, particularly where a plaintiff is a foreign national resident outside of the jurisdiction with no assets within the jurisdiction. (Paras 6, 8, 27)
(B) Civil Procedure - Preliminary Objections - Technical and procedural defects in pleadings - Where such defects do not affect the substance of the application and do not cause prejudice to the opposing party, they are considered curable under the overriding objective of the court to do justice. (Paras 16, 17)
Facts of the case:
The defendants applied for an order for security for costs against a foreign plaintiff who resides outside the jurisdiction and possesses no assets within the jurisdiction. The plaintiff opposed the application, raising preliminary objections regarding alleged technical defects in the notice of application and the authority of the deponent, while also arguing that the application was filed late in the proceedings.
Findings of Court:
the court found that the plaintiff's preliminary objections were of a technical nature and did not prejudice the proceedings. The court determined that the plaintiff's status as a foreign national without assets within the jurisdiction created a real risk that a successful defendant would face significant difficulty in enforcing a costs order. It was held that securing the defendant's right to recover costs was just in the circumstances.
Issues: (a) Whether technical defects in the application warranted its dismissal; (b) whether the plaintiff's status as a foreign national without assets justifies a security order; and (c) whether ordering security for costs is just under the circumstances.
Ratio Decidendi: Courts possess a wide discretion to order security for costs to ensure that a successful defendant is not deprived of the ability to recover costs, particularly when dealing with foreign litigants who lack assets within the jurisdiction. The technical sufficiency of pleadings is secondary to the overriding objective of ensuring justice is served.
Result: Application for security for costs allowed. The plaintiff is ordered to provide security within 14 days, failing which the action is to be struck out.
| Table of Content |
|---|
| 1. court's discretion to order security for costs against foreign plaintiffs. (Para 1 , 2 , 3 , 4 , 5) |
| 2. criteria governing the judicial discretion for security for costs. (Para 6 , 7 , 8) |
| 3. parties' contentions regarding procedural and substantive security for costs elements. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15) |
| 4. procedural technicalities remain secondary to the substance of the application. (Para 16 , 17 , 18 , 19 , 20) |
| 5. foreign residency and lack of local assets necessitate security for costs. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 6. court grants security for costs and stipulates punitive consequences for non-compliance. (Para 29 , 30 , 31) |
JUDGMENT
Introduction
[1] This is an application by the defendants pursuant to O 23 r 1 and/or O 92 r 4 of the Rules of Court 2012 for an order that the plaintiff provides security for the defendants' costs.
[2] After considering the affidavits filed by the parties and the submissions of counsel, I allowed the defendants' application. These are the grounds for my decision.
Background Facts
[3] The plaintiff commenced this action against the defendants by way of Writ of Summons, alleging, inter alia, that the defendants had made defamatory statements in the course of their official duties.
[4] The plaintiff is a foreign national and is resident outside the jurisdiction of this Court and has no asset within jurisdiction.
[5] The defendants thereafter filed the present application seeking an order that the plaintiff provide security for costs for security against their costs in the event they are successful in defending the action.
The Law
[6] The power of the Court to order security for costs is found in O 23 r 1 of the Rules of Court 2012. The provision confers a broad judicial discretion on the Court to order security for costs where it appears just to do so, having regard to all the circumstances of the case. Order 23 rule 1 provides as follows:
"23. (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 jurisdiction;
(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so;
(c) subject to para (2), that the plaintiff's address is not stated in the writ or originating summons or is incorrectly stated therein; or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation,
(e) then, if having regard to all the circumstances of the case, the Court thinks it just to do, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just".
[Emphasis Added]
[7] The governing principles which have been adopted by Malaysian courts in numerous cases were articulated by Lord Denning MR in Sir Lindsay Parkinson & Co Ltd v. Triplan Ltd 2 All ER 273, are as follows:
"The Court has a discretion which it will exercise considering all the circumstances of the particular case. So I turn to consider the circumstances. Mr Levy helpfully suggests some of the matters which the Court might take into account, such as whether the company's claim is bona fide and not a sham and whether the company has a reasonably good prospect of success. Again it will consider whether there is an admission by the defendants on the pleadings or elsewhere that money is due. If there was a payment into Court to get rid of a nuisance claim, that, too, would count. The Court might also consider whether the application for security was being used oppressively - so as to try stifle a genuine claim. It would also consider whether the company's want of means has been brought about by any conduct by the defendants, such as delay in
