Applications to consolidate multiple suits are filed, amongst others, to “save cost, time and effort, and to make the conduct of several actions more convenient by treating them as one action.”[1]
Consolidation applications in the High Court and Subordinate Courts are governed by Order 4 of the Rules of Court 2012.
Order 4 Rule 1(2) and (3) of the Rules of Court 2012 provides the following:
“(2) An order for consolidation shall be made in Form 1 and shall direct that the cause or matter in which the application is made shall be carried on as or under such other cause or matter and that the title of such other cause or matter be amended by adding thereto the title of the cause or matter in which the application is made.
(3) Upon such order being made, the file of the cause or matter in which the application is made shall be transferred to and added to the file of such other cause or matter, and the copy of the order shall be left in place of the file so transferred, and a memorandum of the transfer shall be entered in the cause book against the cause or matter so consolidated.” (Emphasis mine)
Case law reveals that consolidation applications in the High Court and Subordinate Courts have been filed in:
i. The suit intended to be the main suit – for example, see Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Berhad [2020] MLJU 1576,[2] Five Star Heritage Sdn Bhd v Nai Ninn Sararaksh & Anor [2017] MLJU 1666,[3] and Sarawak Securities Sdn. Bhd. v Gerard Ding Sing Dac & Ors [2000] MLJU 403;[4] and
ii. The suit intended to be consolidated into the main suit – for example, see Selinsing Mining Sdn Bhd v Selinsing Gold Mine Manager Sdn Bhd & Ors [2016] MLJU 1201,[5] Ng Joo Soon @ Nga Ju Soon v Devechem Holdings (M) Sdn Bhd And Ors [2010] MLJU 1854.[6]
The former approach, however, is incorrect and is a common error.
The filing a consolidation application in the suit intended to be the main suit, is contrary to the wording of Order 4 Rule 1(2) and (3) of the Rules of Court 2012.
When Order 4 Rule 1(2) and (3) of the Rules of Court 2012 is applied to a hypothetical Suit 1 and Suit 2 and the applicant seeks for Suit 2 to be consolidated into Suit 1, the consolidation application has to be filed in Suit 2.
Suit 2 [i.e. the cause or matter in which the application is made] will be carried on as/under Suit 1 and the title of Suit 1 will be amended by adding the title of Suit 2 [i.e. the cause or matter in which the application is made]
Suit 2 [i.e. the cause or matter in which the application is made] will be transferred to Suit 1 and added to the file of Suit 1.
The above would equally apply to scenarios of three or more suits. If a party intends for all of the suits to be consolidated into 1 suit, consolidation applications have to be filed in each of the suits other than the main suit.
Notwithstanding the above, in the event a consolidation application is incorrectly filed in the suit intended to be the main suit, the Court could still allow the application having regard to the overriding interest of justice.[7]
[1] Halsbury’s Laws of England (4th Ed) Vol 37, p. 60, as quoted by James Foong J (later FCJ) in Aw Yong Wai Choo v Arief Trading Sdn Bhd & Anor [2001] 5 MLJ 526, at p. 531; see also Exxonmobil Exploration and Production Malaysia Inc. v Petrolkapal Sdn Bhd (Safemal Drilling Sdn Bhd, third party) [2008] MLJU 47
[2] Ahmad Amryn bin Abd Malek & Ors v Bursa Malaysia Securities Berhad [2020] MLJU 1576, at paragraph 1(a)
[3] Five Star Heritage Sdn Bhd v Nai Ninn Sararaksh & Anor [2017] MLJU 1666, at paragraph 1
[4] Sarawak Securities Sdn. Bhd. v Gerard Ding Sing Dac & Ors [2000] MLJU 403, at paragraph 1 read together with paragraph 25
[5] Selinsing Mining Sdn Bhd v Selinsing Gold Mine Manager Sdn Bhd & Ors [2016] MLJU 1201, at paragraph 2
[6] Ng Joo Soon @ Nga Ju Soon v Devechem Holdings (M) Sdn Bhd And Ors [2010] MLJU 1854, at paragraph 1
[7] Order 1A of the Rules of Court 2012
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