JUDGMENT

Gopal Sri Ram JCA:

Preliminary

This appeal is directed against the order of the High Court at Shah Alam dismissing the appellants' summons to strike out the respondent's suit on the ground that it was an abuse of the court's process. We heard the appeal on 3 May 1999, and, at the conclusion of arguments, allowed it.

When pronouncing the order of this Court I said that this was one of the worst cases of an abuse of the process I had ever come across. Having re-read the appeal record for the purpose of writing this judgment I have found nothing to alter that view.

Facts And Chronology

The respondent is a housing developer. On 1 June 1994, it entered into an agreement with the first appellant. It was an agreement in the form prescribed by the Architects Association of Malaysia. It is known to the profession as "the PAM form of contract". Under the agreement the first appellant was to carry out certain infrastructure work for the respondent at a project site in Kulim, Kedah.

The second appellant is a consultant engineer. He is the managing director of the first appellant. According to the respondent's amended statement of claim, he is the alter ego of the first appellant.

Later, disputes arose over certain payments which the first appellant claimed was due to it from the respondent. The agreement which the parties had entered into carried in it an arbitration clause. It is a clause commonly found in the PAM form of contract. Acting in accordance with that clause, the parties, on 9 October 1997, referred their disputes to an arbitrator. Pleadings were then exchanged. These comprised of the first appellant's points of claim, the respondent's points of defence and counterclaim as well as a reply from the first appellant.

On 1 June 1998, while the arbitration was on foot, the first appellant took out an originating summons before the High Court at Penang ("the first action") and obtained an ex parte Mareva injunction freezing the contractual retention sum in the hands of the respondent. The first appellant instituted the first action because an arbitrator does not have jurisdiction to grant injunctive relief.

On 24 June 1998, the parties appeared before the arbitrator. The respondent objected to the arbitrator conducting the arbitration on the ground of bias. The objection having failed, the respondent, on 7 July 1998, took out an originating summons ("the second action") in which it obtained an ex parte injunction restraining the arbitrator from proceeding with the arbitration. The second action was also filed in the Penang High Court.

At the hearing of the first action on 20 July 1998 counsel for both sides appeared and obtained a consent order under the terms of which the respondent was to pay the retention sum amounting to RM575,000 into an account in the joint names of the parties' respective solicitors. This sum was to be held by the solicitors pending the resolution of the disputes between the parties either through arbitration or litigation.

On 27 August 1998, the respondent caused to be issued a writ and statement of claim (later amended) against the appellants. This suit, which I will refer to as "the third action", forms the subject matter of the present appeal. There is one matter in regard to the third action which, I think, calls for comment. It has to do with the venue selected by the respondent for commencing it.

Despite the fact that the first and second actions were already pending before the High Court in Penang, the third action was filed in the High Court at Shah Alam. Why this change of venue was necessitated is not altogether clear. Counsel for the respondent informed us during argument that Shah Alam was chosen because the respondent's address for service is in the State of Selangor. But I find this explanation unconvincing. The fact that its address for service is in Selangor did not prevent the respondent from initiating the second action in Penang. In my view, if the third action was necess