1. ) RESTORAN NAIZ ALI SDN. BHD. 2. ) RIZAL ALI BIN NAIZALI BERNIAGA SEBAGAI PAKEEZA RESTAURANT & CATERING v 1. ) A CERENIO RESOURCES SDN. BHD. 2. ) MUHAMMAD ZAHID 3. ) ASIF ALI 4. ) SADIQ BIN AHMAD SAID 5. ) Mohamed Amin Bin Mohamed Shabir

wa-22ip-41-05-2024 High Court (Mahkamah Tinggi) 4 March 2025 • WA-22IP-41-05/2024 • 31 min read
15 cases cited (3 SG, 12 foreign)

Outcome

Decision [37] For the reasons above, I allow the application to intervene with costs of RM 10,000 subject to allocatur. [38] I also direct the Proposed Intervener to file and serve his Defence and Counter Claim (if any) by 26-03-2025 and the plaintiffs be at liberty to file and serve their Reply to Defence and Defence to Counter Claim (if any) by 16-04-2025.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (wa-22ip-41-05-2024). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Application to intervene and be added as a defendant-Order 15 rule 6(2)(b) of the Rules of Court 2012-The principle of overriding importance is that all necessary and proper parties, but no others, should be before the court at the same time to enable the effectual and complete determination and adjudication to be made by the court of all questions and issues between the parties which arise for decision-To this end, no action will be defeated by reason of mere mis-joinder or non-joinder of any party which is capable of being remedied and is no defence-Additionally, the court has extensive discretionary powers – to add, substitute or strike out parties who are not proper or necessary, and for these purposes the court may even act of its own motion-Generally, in common law and chancery matters, a plaintiff who considers that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone and he cannot be forced to pursue his remedy against other persons who he has no wish to sue-Nevertheless, a person who is not a party may be added as a defendant over the objections of the plaintiff on his own intervention or upon the application of the defendant or in some cases by the court of its own motion-But, a defendant against whom no relief is sought by the plaintiff will generally not be added against the wishes of the latter. (See Hood-Bars v Frampton & Co [1924] WN 287.) A third party notice is in such a case usually the proper procedure to adopt though such a defendant can be added in a proper case-The tests the Court will use to decide an application by a person to be added as a defendant when no relief is sought by the plaintiff against that person-A person against whom no relief is sought by a plaintiff will generally not be allowed to intervene to be added as a defendant in a suit against the wishes of the plaintiff. This is because a plaintiff is entitled to pursue his remedy against a defendant that he chooses and he cannot be forced to pursue his remedy against other persons who he has no wish to sue-A person will generally not be allowed to intervene in a suit to be added as a defendant if his interest will only be affected commercially, but not legally affected by the judgment in the said suit. However, in a proper case intervention will be allowed-The dichotomy between "legal" and "commercial" interests is not helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?-

Practice Areas

Civil Procedure

Judges (1)

Leong Wai Hong Delivered

Counsel (11)

Azmi & Associates Firm Saiful, Roger & Co. Firm Suren Subra Law Chambers Firm Azra Hazirah Counsel Intervener Hazreel Hagim Counsel Plaintiff Izzat Asyraf bin Zamri Counsel Plaintiff Nursyafiqah Counsel Intervener Raja Muhamad Zulqarnain B. Raja Abd Rahman Counsel Plaintiff Siti Noorhazirah Counsel Intervener Siti Nur Athira binti Rohizad Counsel Defendant Surendran Subramaniam Counsel Intervener

Parties (7)

A CERENIO RESOURCES Sdn Bhd Defendant RESTORAN NAIZ ALI Sdn Bhd Plaintiff RIZAL ALI BIN NAIZALI BERNIAGA SEBAGAI PAKEEZA RESTAURANT & CATERING Plaintiff Asif Ali Defendant Mohamed Amin bin Mohamed Shabir Defendant Muhammad Zahid Defendant Sadiq bin Ahmad Said Defendant

Case Significance

Illustrates the principles governing joinder of parties under Order 15 rule 6(2)(b) of the Rules of Court 2012: all necessary and proper parties should be before the court so that every issue can be effectually determined, no action is defeated by curable misjoinder or non-joinder, and the court has a wide discretion — here exercised to allow the proposed intervener to be added as a defendant.

This High Court decision at Kuala Lumpur concerns an application by a proposed intervener to be added as a defendant in an intellectual-property suit under Order 15 rule 6(2)(b) of the Rules of Court 2012. The existing plaintiffs were Restoran Naiz Ali Sdn Bhd and an individual second plaintiff trading as Pakeeza Restaurant & Catering; the existing defendants included A Cerenio Resources Sdn Bhd and several individuals. The proposed intervener applied to be joined as the fifth defendant, and the plaintiffs objected to his being added. The court therefore had to decide whether joinder was necessary or proper to enable the real matters in dispute to be effectually and completely determined.

The court granted the application. It applied the principle of overriding importance that all necessary and proper parties, but no others, should be before the court at the same time so as to enable the effectual and complete determination and adjudication of all the questions and issues that arise for decision, together with the settled rule that no action will be defeated by reason of mere misjoinder or non-joinder of a party where that is capable of being remedied, and that the court has an extensive discretion in the matter. Satisfied that the proposed intervener was a proper party whose presence would assist the complete resolution of the dispute, the court allowed the application to intervene with costs of RM10,000, subject to allocatur, and directed the proposed intervener to file and serve his defence and counterclaim. In reaching that result the court gave weight to the object of the rule, which is to avoid a multiplicity of proceedings and the risk of inconsistent findings by ensuring that a person whose interests are bound up with the subject matter of the suit is heard in the action rather than left to litigate the same questions separately. The judgment is a useful illustration of the principles governing the joinder of parties under Order 15 rule 6(2)(b) of the Rules of Court 2012, and of the court's readiness to add a party where doing so serves the effectual determination of all the issues in dispute.

On what basis did the court allow the proposed intervener to be joined?

Applying Order 15 rule 6(2)(b) of the Rules of Court 2012, the court held that all necessary and proper parties should be before it so that all questions in dispute can be effectually and completely determined, that no action is defeated by curable misjoinder or non-joinder, and that it has a wide discretion. Satisfied the proposed intervener was a proper party, it allowed the application to intervene with RM10,000 costs.

What was the proposed intervener directed to do after being joined?

The court directed the proposed intervener, added as the fifth defendant, to file and serve his defence and counterclaim, and ordered costs of RM10,000, subject to allocatur, in respect of the joinder application.

Statutes Cited

Rules of Court 2012

Cases Cited (15)

SG (1)
[2015] SGCA 60
SLR (2)
[2001] 4 SLR 25 [2016] 1 SLR 915
UK (7)
[1892] 1 Ch 487 [1902] 1 Ch 911 [1942] AC 332 [1944] Ch 41 [1951] 1 Ch 33 [1956] 1 QB 357 [1968] 2 QB 587
MY (5)
[1969] 2 MLJ 52 [1991] 1 MLJ 27 [1992] 2 MLJ 63 [1993] 2 MLJ 143 [1997] 3 CLJ 946

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (wa-22ip-41-05-2024)