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HIGH COURT MALAYA KUANTAN
FARIDAH BEGUM ABDULLAH – Appellant
Versus
DATO MICHAEL CHONG – Respondent
[Civil Suit No: 22-30-1994]
[1] This is an application by the defendant under O 23 of the Rules of the High 1980 for security for costs to be furnished by the plaintiff. The defendant filed a total of 4 affidavits in support of his application. (Enclosure 6A, 18A, 26A and 29A). The plaintiff filed 3 affidavits in reply. (Enclosures 15A, 21A and 27A). The plaintiff is a citizen of the Republic of Singapore, and having no permanent resident status in Malaysia. The plaintiff has been a regular visitor to
[2] Malaysia since 1990. During the pendency of this application the plaintiff had been adjudged bankrupt pursuant to bankruptcy petition no 29-69-1994 in the High Court of Malaya at Kuantan.
Preliminary Objection
[3] When this matter came up for hearing on 14 January 1995 Mr Jagdeep Singh, Counsel for the plaintiff, raised a preliminary objection with regard to this application. He stated that, since the plaintiff had been adjudged bankrupt this may give rise to problem of compliance because of s 8(1) of the Bankruptcy Act 1967. He contended that an order for security for costs would amount to a debt provable under s 8(1) of the Bankruptcy Act thus, the Official Assignee would be an aggrieved party. This application would fall foul of the Rules of the High Court since one of the aggrieved party, ie, the Official Assignee, had not been joined as a party. In reply Mr Vendargon on behalf of the defendant countered that s 8(1) of Bankruptcy Act relates to a debt provable in bankruptcy whereas, security for costs in a pending suit is not a debt provable, it is not such, at least, not until at the end of the day.
[4] He further maintained that on the authorities of Rhodes v. Dawson [1886] 16 QBD 548 and Cook v. Whellock [1980] 24 QBD 658, mere act of bankruptcy or impecuniosity is not a ground for security for costs to be ordered against a party and therefore, he said, by necessary implication security for costs may still be ordered in a fit and proper case. He also contended that, to say that an order for security for costs could not be made against a bankrupt would in effect put a bankrupt in a more privileged position than a non bankrupt. That he said, could not be right.
[5] For reasons that will follow, I agree entirely with the submissions of the learned Counsel for the defendant. The authorities merely indicate that bankruptcy or impecuniosity should not by itself be a ground for ordering security for costs, they do not say that in those circumstances an order for security for costs could not be made. Since there is nothing either in the Bankruptcy Act or in the Rules of the High Court which takes away the discretion of the Court under O 23 to order security for costs in a fit and proper case, I take it that, O 23 applies to a bankrupt in the same way as it applies to other litigants. But as established by several authorities bankruptcy should not be a factor that should prompt the Court in making such an order. For those reasons I hold that the Court is not precluded by reason of the plaintiff's bankruptcy, from ordering the plaintiff to furnish security for costs, if in all the circumstances of the case, the Court finds it just so to do. I, therefore, dismissed the plaintiffs preliminary objection.
The Application Proper
[6] Security for costs is governed by O 23 r 1(1) of the Rules of the High which provides as follows:
rule 1(1) Where, on the application of a defendant of an action or other proceeding in the High Court, it appears to the Court:
(a) that the plaintiff is ordinarily resident out of the jurisdiction; or
(b) ...
(c) subject to para (2), that the plaintiff's address is not stated in the writ or other originating process or is incorrectly stated therein; or
(d) ...
then, if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just.
(2) The Court shall not require a plaint
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