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15 SAcLJ Matrimonial Assets and the 3 rd Party 277
parties should not be compelled to litigate against persons whom they do
not wish to engage in litigation with. In this regard, see the case of Tajjul
Ariffin bin Mustafa v Heng Cheng Hong, 104 where the court stated:
“(4) 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. (See Per Wynn-Perry J in Dollfus Mieg et
Compagnie SA v Bank of England.)…
(6)… 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.).
…he [the plaintiff] should be allowed to proceed against the
defendant of his choice…There may be cogent reasons for his
not wanting to proceed against the intended second defendant;
for example the intended second defendant, who is alleged by
the defendant to have been wholly or partly at fault, may be a
friend or next of kin of the plaintiff, or the joinder may result in
unnecessary prolongation of the trial or in the plaintiff having to
shoulder the burden of additional costs should he fail against
both the defendants. There may, of course, be other reasons.”
(per Edgar Joseph JR SCJ)”
4.10.3 Where 3 rd party/other parties apply for joinder
161 If the 3 rd party himself, after having been given due notice of the
proceedings, applies to join the proceedings, or if either the husband and
wife apply to join the 3 rd party to the proceedings, the test for whether to
allow the appplication will be whether the 3 rd party’s proprietary or
pecuniary rights would be affected by the court’s decision. (See the cases
of Pegang Mining, Pelangi Airways, Chang Ching Chuen and Gurtner v
Circuit, supra, discussed in Section 4.4.1(b) above). The factors
discussed in paragraph 4.10.1(a)-(c) would also be relevant.
104
[1993] 2 MLJ 143