Aaron Teoh Guan Ti v Jaks Island Circle Sdn. Bhd. (WA-12ANCvC-22-02/2024)

AARON TEOH GUAN TI [NO. K/P: 890106-14-6081]

CHOO AILIN [NO. K/P: 880119-56-5024]

BEH TENG CHO [NO. K/P: 660202-08-5967]

CHEN YISHENG [NO. K/P: 820727-07-5585]

CHEN HUI JING [NO. K/P: 870721-35-5266]

CHEW LI SA [NO. K/P: 690824-01-5004]

CHIN SOOI OI [NO. K/P: 520801-08-5446] 01/12/2024 23:04:54

CHIN SHOON CHONG [NO. K/P: 661231-12-5141]

HONG LAN MEI [NO. K/P: 690207-12-5152]

CHIN YOONG KEN [NO. K/P: 900228-14-6369]

HIONG YEE JUN [NO. K/P: 800204-14-5654]

HONG HUE DING [NO. K/P: 751216-08-5208]

LIEW JUNE YAN [NO. K/P: 780521-14-5871]

KELVIN WONG [NO. K/P: 850307-10-5335]

LEE CHUN FEI [NO. K/P: 840811-06-5177]

LEONG KUM PHENG [NO. K/P: 520705-08-5614]

ONG TEE PEI [NO. K/P: 851206-04-5008]

LIEW LAY HWA [NO. K/P: 821228-10-6038]

LOK YEE ONN [NO. K/P: 730511-05-5017]

LI FANG [NO. PASPOT JEPUN: TT1944878]

LOKE JEE CHUNG [NO. K/P: 890522-06-5037]

LOKE JEE HUI [NO. K/P: 810213-11-5616]

SOH SIANG LONG [NO. K/P: 830814-01-5731]

TAN POH WEE [NO. K/P: 801010-10-5800]

ZHANG FENG [NO. PASPOT SINGAPURA: K2468626P]

TAN SOO KEONG [NO. K/P: 610819-08-6075]

KWOK TONN YOONG [NO. K/P: 600602-08-5048]

TEOH LEE KOON [NO. K/P: 740114-07-5638]

NEOH SOON HOE [NO. K/P: 740204-07-5009]

TERESA TIONG ING YIEN [NO. K/P: 871110-52-6868]

TIONG YEW SIM [NO. K/P: 510117-10-5165]

JOO CHOOI MEI [NO. K/P: 690501-05-5132]

TING SIIK ING [NO. K/P: 750801-13-6112]

TING SIIK HIE [NO. K/P: 710627-13-5686]

YAP TECK KHENG [NO. K/P: 651129-10-5655]

TONG SOKE FONG [NO. K/P: 690826-12-5004]

LIEW GUAT TING [NO. PASPOT SINGAPURA: S8780170E] …PERAYU-PERAYU DAN JAKS ISLAND CIRCLE SDN. BHD. [NO. SYARIKAT: 200901031454 (874563-X)] …RESPONDEN YANG DIPUTUSKAN OLEH YANG ARIF HAKIM HAJI AKHTAR BIN TAHIR PADA 1 OKTOBER 2024] DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN SIVIL NO.: WA-A52NCVC-49-01/2023

AARON TEOH GUAN TI

CHOO AILIN

BEH TENG CHO

CHAN KOK LIANG

TEO KIM HONG

LIM KOOK LEY

CHANG SEONG HENG @ CHEN SEONG HIN

NG YOKE KENG

CHEN YISHENG

CHEN HUI JING

CHEW LI SA

CHIN SOOI OI

CHIN SHOON CHONG S/N XMj8lq5SkiUdzjAGSWsww

HONG LAN MEI

CHIN YOONG KEN

CHOO CHOON KEE

CHEN WEI FONG

CHOONG MENG SZE

GAN KOK TONG

CHIN MIEN YEE

HIONG YEE JUN

HONG HUE DING

LIEW JUNE YAN

HUI WAN YEEN

KELVIN WONG

KENNETH SEOW SOON KHENG

KONG WAI SIM

LAI SOO WAI

LAU CHEE HONG

LEE CHUN FEI

LEONG KUM PHENG

ONG TEE PEI

LIEW LAY HWA

LIEW MING MING

LIM SENG CHIANG

LIM SENG BOON

LIM SIOK YEONG

LOK YEE ONN

LI FANG

LOKE JEE CHUNG

LOKE JEE HUI

LYE SIEW MIN

NG SIOK WOOI

PATRICK CHAY ING KEONG

POON PUAY MAY

SAMUEL PEY PING SHEN

LIM LAY BENG

SOH SIANG LONG

TAN POH WEE

ZHANG FENG

TAN SOO KEONG

KWOK TONN YOONG

TEOH LEE KOON

NEOH SOON HOE

TERESA TIONG ING YIEN

TIONG YEW SIM

JOO CHOOI MEI

TING SIIK ING

TING SIIK HIE

TOH JIUNN JER

WEN KENG SENG

WONG WENG WAI

TAM SAW KING

YAP TECK KHENG

TONG SOKE FONG

NG LI SIAN

LIEW GUAT TING (NO. PASPORT SINGAPURA: S8780170E) …PLAINTIF-PLAINTIF DAN JAKS ISLAND CIRCLE SDN. BHD. [NO. SYARIKAT: 200901031454 (874563-X)] …DEFENDAN S/N XMj8lq5SkiUdzjAGSWsww

The Plaintiffs’ appeal is against the decision of the learned Sessions Judge who had allowed the Defendant’s application to strike out the Plaintiff’s claim under order 18 Rule 19 of the Rules of Court 2012 (“the Rules”). Brief facts

The Plaintiffs claim against the Defendant for penalty (LAD) for the late delivery of vacant possession of a project known as Pacific Star at section 13, Petaling Jaya (“the property”) developed by the Defendant.

Additionally, the Plaintiffs are seeking to set off the LAD with the balance purchase price and for the Court to declare that the set off is deemed to be the payment of the full purchase price without attracting any late payment interest. Any balance left after the set off to be paid by the Defendant to the Plaintiffs. The Defendant’s application to strike out

The Defendant’s application for striking out is made under Order 18 Rule 19 of the Rules which provides as follows:

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a)

The Defendant’s application to strike out is based on 4 main reasons i.e. i) By combining all their claim as a class action the Plaintiffs had abused the process of Court; ii) the Plaintiffs claim is defective as S/N XMj8lq5SkiUdzjAGSWsww their claim is not endorsed on the Writ; iii) not all the Plaintiffs had obtained leave to proceed with the claim under section 451(2) of the Companies’ Act 2016 against the Defendant which was now insolvent.; and iv) the Defendant being insolvent the Plaintiffs are not entitled to a set off.

The learned Sessions Judge found in favor of the Defendant on all 4 reasons and decided that the Plaintiffs by combining their claim had abused the process of Court, the Plaintiffs have no right to set off from the payment of the purchase price, the Writ was defective as it was not endorsed with the Plaintiffs claim and finally not all the Plaintiffs had obtained consent to proceed with the claim against the Defendant. The Court’s decision

At the outset the Court agrees with the Plaintiff that this appeal is to be conducted by way of rehearing as this is an appeal from an interlocutory application and not after a full trial. Order 55 (1) and (2) of the Rules stipulates as follows:

Definition (O. 55 r. 1) In this Order, "decision" includes judgment, order and decree.

Appeal to be by re-hearing on notice (O. 55 r. 2). S/N XMj8lq5SkiUdzjAGSWsww All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from.

There is a plethora of cases which have expounded the circumstances under which an application to strike out under Order 18 Rule 19 can be allowed. The bottom line is that a claim can only be struck out in a plain and obvious case on perusing the facts pleaded in the Statement of Claim.

For an application for striking out the Court is not permitted to delve on the evidence which might be led by the parties, to determine whether the Plaintiff can succeed in proving the claim against the Defendant. The Court can only consider the facts as stated in the Statement of Claim to determine whether the claim falls under any or all the categories mentioned in Order 18 Rule 19 of the Rules.

For a case to be struck out for an absence of cause of action no evidence by way of affidavit is necessary. The absence of the cause of action must be apparent from the facts pleaded in the Statement of Claim. In this case the Statement of Claim shows a clear and obvious cause of action which is based on a Sale and Purchase Agreement entered into both the Plaintiff and the Defendant.

As the existence of the agreement is not disputed the Plaintiffs’ have a valid cause of action. It is a different matter althogether whether the plaintiffs can prove their claim and be awarded the relief claimed under the Statement of Claim.

The cause of action is a reasonable and an available cause of action known in law and is certainly not farfetched. The Court rules therefore the Statement of Claim discloses a reasonable cause of action. The claim therefore cannot be struck out summarily for absence of a cause of action

The basis of the cause of action is a delay of delivery of vacant possession which can only be determined after looking at the provisions of the Agreement.

On there being a delay in the delivery of vacant possession the Agreement stipulates that the Plaintiffs are entitled to LAD the calculation of the amount is based on the number of days of delay. This is an issue which can only be determined after considering all the evidence adduced. This issue cannot be dismissed summarily.

The other pertinent issue in this case is whether the Plaintiff is entitled to set off the LAD amount from the purchase price without attracting any interest can only be determined after looking at the Agreement and hearing legal arguments.

In short, the Court rules that all the above issues do not fall under the category of being scandalous, frivolous, vexatious, embarrassing a fair trial, prejudicial or an abuse of the process of court, which are the factors which the Court can consider in summarily dismissing the claim under Order 18 Rule 19 of the Rules.

The reason the learned Judge relied on in allowing the Defendant’s application under Order 18 Rule 19 of the Rules, that there is an abuse of process by the Plaintiffs combining their claim is clearly wrong in the face of clear provision of the Rules which allows for joinder of parties.

The relevant provision is Order 15 Rule 4 of the Rules

Joinder of parties (O. 15 r. 4)

Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where-

if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled shall, subject to the provisions of any written law and unless the Court gives leave to the contrary, be parties to the action S/N XMj8lq5SkiUdzjAGSWsww and any of them who does not consent to being joined as a plaintiff shall, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant. This paragraph does not apply to a probate action.

Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in an action in respect of that contract, the Court may, on the application of any defendant to the action, by order stay the proceedings in the action until the other persons so liable are added as defendants.

The learned Judge is also wrong in finding the Writ to be defective for non-endorsement of the claim. It is not mandatory to endorse the claim on the Writ. This is stated under the Rules

Endorsement on writ (O. 6 r. 2)

Before a writ is issued, it shall be endorsed-

with a statement of claim, which shall comply with the requirements of Order 18, or, if the statement of claim is not endorsed on the writ, S/N XMj8lq5SkiUdzjAGSWsww with a concise statement of the nature of the claim made or the relief or remedy required in the action begun thereby;

where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;

where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued;

where the plaintiff sues by a solicitor, with the plaintiff's address and the solicitor's name or firm and a business address of his within the jurisdiction;

where the plaintiff sues in person-

with the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and

(ii) with his occupation; and S/N XMj8lq5SkiUdzjAGSWsww

with the number of days within which an appearance is required to be entered under Order 12, rule 4.

In short, the learned Judge has misdirected himself on the application of Order 18 Rule 19 of the Rules by summarily dismissing the Plaintiffs’ claim.

In the upshot the Court allowed the Plaintiffs’ appeal with a cost of RM5,000 and remitted the case to the Session Court to adjudicate the issues based on the provisions of the law. Dated: 25.11.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N XMj8lq5SkiUdzjAGSWsww PARTIES For the Plaintiff: Nama Peguamcara: Nur Atiqah Binti Ahmad Ariff Tetuan V. L. Decruz & Co. Unit 50-11-06, 11th Floor, Wisma UOA Damansara, No. 50, Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur For the Defendant: Nama Peguamcara: Wilson Lim / Huam Wan Ying Tetuan Wilson Lim, Suite 19-9, Commerce One (Menara K1), Lorong 3/137C, Jalan Klang Lama, 58200 Kuala Lumpur.