Gannon Dunkerley & Co. Ltd (GDCL) [No. Sykt: 141671-T] 1. Schomi Engineering Bhd [No. Sykt: 111633-M] 2. Scomi Group Bhd {No. Sykt: 71212-A] 3. Dato' Mohd Shahrom bin Mohamad [No. K/P: 521015-06-5223] 4. Sammy Tse Kwok Fai [No. Passport: 53

Gannon Dunkerley & Co. Ltd (GDCL) [No. Sykt: 141671-T] 1. Schomi Engineering Bhd [No. Sykt: 111633-M] 2. Scomi Group Bhd {No. Sykt: 71212-A] 3. Dato' Mohd Shahrom bin Mohamad [No. K/P: 521015-06-5223] 4. Sammy Tse Kwok Fai [No. Passport: 53

Although the court had jurisdiction under Order 23 because the plaintiff was ordinarily resident outside Malaysia, the court exercised its discretion against ordering security: the plaintiff's claim was arguable and not to be decided at interlocutory stage, the plaintiff had not been shown to be impecunious to the point of denying justice, and reciprocal enforcement under REJA 1958 meant defendants had adequate means to enforce any judgment in India.

Citation
22NCVC-137-05/2020 (Mahkamah Tinggi)
Parties
Plaintiff: Gannon Dunkerley & Co. Ltd; Defendant: Scomi Engineering Bhd; Defendant: Scomi Group Bhd; Defendant: Dato' Mohd Shahrom bin Mohamad; Defendant: Sammy Tse Kwok Fai; Defendant: Foong Chong Hong; Defendant: Shah Hakim@Shahzanim bin Zain; Defendant: Lee Chun Fai; Defendant: Amirul Azhar bin Baharom
Court
High Court
Jurisdiction
Malaysia
Judgment Date
28 October 2021
Case Number
22NCVC-137-05/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Suit Claim Founded on Corporate Guarantee / Interlocutory Application for Security for Costs Under Order 23/order 92
Outcome
Application for security for costs dismissed.
Legal Topics
Security for Costs, Lifting the Corporate Veil, Reciprocal Enforcement of Judgments Act 1958, Corporate Guarantee
Source Language
Malay/English
Civil Procedure Company Law International Enforcement of Judgments Security for Costs Lifting the Corporate Veil Reciprocal Enforcement of Judgments Act 1958 Corporate Guarantee

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Parties

Gannon Dunkerley & Co. Ltd

Plaintiff

Scomi Engineering Bhd

Defendant

Scomi Group Bhd

Defendant

Dato' Mohd Shahrom bin Mohamad

Defendant

Sammy Tse Kwok Fai

Defendant

Foong Chong Hong

Defendant

Shah Hakim@Shahzanim bin Zain

Defendant

Lee Chun Fai

Defendant

Amirul Azhar bin Baharom

Defendant

Procedural Posture

Civil Suit Claim Founded on Corporate Guarantee / Interlocutory Application for Security for Costs Under Order 23/order 92

Legal Issues

  1. 1 Whether security for costs should be ordered against a foreign plaintiff ordinarily resident outside Malaysia
  2. 2 Whether the plaintiff is impecunious and likely unable to satisfy a costs order
  3. 3 Whether the claim against the holding company and its directors is arguable (lifting the corporate veil/fraud)

Ratio Decidendi

Although the court had jurisdiction under Order 23 because the plaintiff was ordinarily resident outside Malaysia, the court exercised its discretion against ordering security: the plaintiff's claim was arguable and not to be decided at interlocutory stage, the plaintiff had not been shown to be impecunious to the point of denying justice, and reciprocal enforcement under REJA 1958 meant defendants had adequate means to enforce any judgment in India.

Court Disposition

Application for security for costs dismissed.

Orders

  • Application for security for costs dismissed
  • Defendants ordered to pay costs to plaintiff of RM5000.00