Abuse of process: forum shopping and duplicity of proceedings - S L Ng Trading Agency Sdn Bhd v. Tohtonku Sdn Bhd [2025] 9 MLJ 946
Introduction
A litigant who:
(i) with knowledge of a prior lawsuit filed against it in one court, files a separatelawsuit on the same subject matter against the counterparty in a different court; and
(ii) thereafter, seeks to transfer the second lawsuit to avoid an adverse finding being made against him;
is guilty of abuse of process of the court on both counts.
In S L Ng Trading Agency Sdn Bhd v Tohtonku Sdn Bhd [2025] 9 MLJ 946, the learned judge struck out the plaintiff’s claim on the ground that it is an abuse of the process of the court
Facts
The plaintiff was the distributor for the defendant’s products under a Master Distributor Agreement (“MDA”). Disputes arose between the parties, culminating in the defendant terminating the MDA and filing a lawsuit against the plaintiff in the High Court at Kuala Lumpur (“KL Suit”) on 8-1-2025 for inter alia monies owing under the MDA. The plaintiff countered by filing a separate lawsuit against the defendant in the High Court at Penang (“PG Suit”) on 11-1-2025 alleging wrongful termination of the MDA.
In the PG Suit, the plaintiff first applied for an ex parte injunction to restrain the defendant from terminating the MDA and demanding for monies thereunder. The ex parte application was dismissed by the learned judge. Next, the plaintiff applied for an inter partes injunction, including an ad interim injunction. The ad interim relief was also refused.
In the meantime, the defendant applied to strike out the claim in the PG Suit on the ground that it is an abuse of process. The plaintiff responded by applying to transfer the PG Suit to the High Court at Kuala Lumpur on the ground that it is the forum conveniens.
All three applications i.e., for inter partes injunction, striking out, and transfer, came up for hearing on the same day.
Decision
The learned judge struck out the plaintiff’s claim for being an abuse of the process of the court on the grounds that:
the plaintiff was attempting to forum shop in that the High Court at Kuala Lumpur is the natural forum for the disputes and the plaintiff moved ex parte in the PG Suit to enhance its chances of obtaining an unfair advantage over the defendant (by effectively staying the KL Suit);
the plaintiff had knowledge of the KL Suit at the time it filed the PG Suit;
the PG Suit gives rise to a duplicity of proceedings, which could be avoided by the plaintiff counterclaiming in the earlier KL Suit;
the transfer application is yet another abuse of process to avoid adverse findings being made against it in the PG Suit and an afterthought, made only after the plaintiff failed to obtain the ex parte and ad interim reliefs; and
there was no good reason to file the lawsuit in the High Court at Penang.
In conclusion, the learned judge aptly quoted the following remark made by the Singapore Court of Appeal in Lakshmi Anil Salgaocar v Jhaveri Darsan Jitendra [2019] 2 SLR 372:
“Forum selection is an extremely crucial process to any would - be litigant for a host of substantive, procedural, tactical and strategic reasons. While it is usually the prerogative of a litigant to decide on the forum in which to bring his claim, the common law has developed a set of principles and rules to curb forum ” shopping and to prevent the abuse of process.
With the PG Suit having been struck out, the learned judge granted leave for the plaintiff to withdraw the transfer application, which has become academic. In addition, the plaintiff’s application for inter partes injunction was also dismissed.
Commentary
This decision serves as a timely reminder to litigants that the court will not condone any tactical manoeuvre by parties to switch the forum to determine the disputes to try to enhance its chances of obtaining a favourable outcome.
[Note: this decision is pending appeal at the Court of Appeal]
If you have any questions on this article,
please contact:
Chok Zhin Theng
Partner
Email: litigation@ctslawyers.com.my
Tel: 03-6203 6918
Fax: 03-6203 6928
Michelle Chin Zi Shan
Associate
Email: litigation@ctslawyers.com.my
Tel: 03-6203 6918
Fax: 03-6203 6928
