Ah Yen Parquet Works Sdn Bhd v Lau Yaw Guan (WA-12ANCvC-131-10/2025)

AH YEN PARQUET WORKS SDN BHD [Company Registration No.: 201601024441 (1195380-A)]

SEVENSTIAR A/L ANTHONY (NRIC No.: 660124-10-6549) ... APPELLANTS AND LAU YAW GUAN (NRIC No.: 750629-04-5429) ... RESPONDENT GROUNDS OF JUDGMENT

This is an appeal by the Appellants/Defendants ("the Defendants") against the decision of the learned Sessions Court Judge ("the learned SCJ"), dated 26 September 2025, which dismissed the Defendants' application to strike out the Respondent/Plaintiff's ("the Plaintiff") suit under Order 18 Rule 19 of the Rules of Court 2012 ("ROC 2012").

On 1 July 2025, the Defendants filed an application to strike out the Plaintiff's claim. The learned SCJ dismissed the application on 26 September 2025 with costs in the cause. The Defendants filed this appeal on 10 October 2025.

I have dismissed the appeal outright on the basis of the Defendants' preliminary objection that the Plaintiff has no right to appeal the dismissal of its striking-out application made by the learned SCJ. At this juncture, the Plaintiff again had no right to appeal further to the Court of Appeal on the dismissal of its same application, which I had made. Such blatant disregard for the law must be put to an end. This is to prevent tactical delays from proceeding with full trial.

The Plaintiff commenced the suit for damages arising from the collapse of a decorative wooden ceiling panel installed at the Plaintiff's residential premises at No.1, Jalan Desa Bukit Tiara 1, Tiara Hills, 56000 Cheras, Kuala Lumpur ("the Premises").

The 1st Defendant ("D1") is a company engaged in, among others, the supply and installation of wooden ceiling panels. The 2nd Defendant ("D2") is the shareholder and director of D1 and is alleged to have personally managed and supervised the works at the Premises.

The Plaintiff's causes of action against the Defendants include breach of express and implied terms of the agreement, negligence, vicarious liability, and res ipsa loquitur in relation to the ceiling collapse on or about 7 September 2024 ("the Fall Event").

The Respondent raised a preliminary objection that this appeal is non-appealable under s 28(1)(c) of the Courts of Judicature Act 1964 ("CJA 1964"), which provides that no appeal shall lie to the High Court where a subordinate court has dismissed any application to strike out any writ or pleading.

The Appellants relied on MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC, which carved out limited exceptions to the general prohibition, permitting an appeal where the dismissal relates to a threshold condition such as locus standi, res judicata, or state immunity. The Appellants contend that this appeal raises a fundamental threshold issue: whether the Defendants are the proper parties to be sued in the absence of any direct contractual, tortious, or statutory relationship with the Plaintiff.

I agree with the Respondent's argument where the judgment of YA Nallini FCJ (as she then was) in MT Ventures is clear with the detailed explanation.

The Summary of Judgment of MT Ventures by YA Nallini FCJ (as she then was) at paragraphs 10 and 24 are instructive:

We concluded that, when section 68(1)(f) CJA is construed holistically and harmoniously with section 67 CJA and necessarily section 3 CJA, it will be found to be applicable to cases where the High Court determines that further oral evidence needs to be adduced in order that it can arrive at a decision which finally disposes of the parties' rights. In such instances there is no right of appeal because the parties' rights have not been finally disposed of or fully adjudicated upon.

In brief, our reasons for so concluding are as follows:

Section 67 confers a general jurisdiction on the Court of Appeal to hear all appeals in respect of any civil cause or matter.

Section 68 CJA limits the nature of appeals that can be brought to the Court of Appeal, including section 68(1)(f) CJA which precludes the bringing of appeals in respect of the dismissal of an application to strike out a pleading or writ;

Therefore section 68 CJA has to be read in conjunction with section 67 CJA as the former, i.e. section 68 CJA, provides the exceptions to the general nature of the latter, i.e. section 67 CJA. And section 68(1)(f) CJA is a part of section 68 CJA.

However, section 67 CJA cannot be construed without reading into it section 3 CJA. And in this context section 3 CJA (as held in Kempadang and Asia Pacific) delimits the types of appeals that can be brought. It precludes rulings made in the course of a trial or hearing which do not finally dispose of the rights of the parties. Conversely, where a Court has made an order in the course of a trial or hearing which does finally dispose of the rights of the parties, it is appealable.

If section 68(1)(f) CJA is to be construed in conjunction with section 67 CJA and section 3 CJA, it then follows that section 68(1)(f) CJA should be read to take into consideration section 67 CJA as well as section 3 CJA, which precludes any appeal from an order which does not finally dispose of the rights of the parties.

Section 68(1)(f} CJA would also have to be interpreted in consonance with sections 67 and 3 of the CJA where an order does finally dispose of the rights of parties. This in turn means that orders for the striking out of a writ or pleading which do finally dispose of the rights of parties would not be a 'ruling' under section 3 CJA.

And where a 'decision' does dispose of the rights of parties finally it is appealable under section 67. As such, section 68(1)(f) CJA has to be read 5 harmoniously with both sections 67 and 3 CJA. Therefore section 68(1)(f) CJA has to be construed so as to provide an exception to section 67 but not so as to take away a substantive right of appeal that accrues to a party.

Where a decision finally disposes of a party's rights, then a right of appeal accrues to, or vests in that party in accordance with sections 67 and 3 of the CJA. That right of appeal is not taken away by section 68(1)(f) CJA, which serves to ensure that appeals are not taken in instances where no rights have finally been disposed of. In short, section 68(1)(f) CJA serves to clarify the entrenched position in law that generally no appeals are available under sections 67 and 3 CJA where no rights of the parties have been finally disposed of.

In other words, section 68(1)(f) CJA cannot be construed in vacuo and literally so as to warrant a reading that all dismissals of applications to strike out a writ or pleading are unappealable.

It is beyond doubt that the Defendant cannot appeal on the dismissals of its striking out application. As further emphasised in the Summary of Judgment at paragraphs 36-38 that:

Indeed, the key requirement for something to be nonappealable under section 3 of the CJA is that the 'ruling in question does not finally dispose of the rights of the parties'.

Therefore, there is a final disposal of rights where either:

the rights of the parties under the main suit are finally disposed of; or

where the rights of the parties that are ancillary or separate from the parties' substantive rights under the suit, but also crucial to the parties are disposed of; and

where in both instances, the indicia of the final disposal of the parties' rights is measured by an irreparable, irreversible or irrevocable loss or prejudice, which may not be easily compensated.

However, where one needs further oral evidence to determine an issue, namely where the said evidence is needed for the courts to properly adjudicate upon a claim, the matter is non-appealable as there cannot truly be said to have been a final disposition of rights. In other words, where the court is merely deferring its decision in order to hear evidence, the matter is non-appealable.

Section 68(1)(f) of the CJA 1964

The central provision reads as follows: "No appeal shall be brought to the Court of Appeal in any of the following cases: ... (f) where a High Court dismissed any application to strike out any writ or pleading;"

On its face, s 68(1)(f) CJA 1964 bars an appeal where a High Court has dismissed an application to strike out a writ or pleading. The provision is a statutory bar against a specific category of interlocutory appeal. The question in MT Ventures is whether that bar, by its terms or by its purpose, extends to applications brought under Order 14A and Order 33 of the ROC 2012. There is no other avenue for the striking out application to be appealed further but to proceed with a full trial of the suit.

(ii) Order 18 Rule 19 ROC 2012 The Striking Out Provision

The procedural mechanism for striking out a writ or pleading is provided under Order 18 Rule 19 of the ROC 2012, which states: "(1) 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; 8

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."

The locus classicus on Order 18 Rule 19(1) ROC 2012 is the Supreme Court decision in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 710 SC, which established the following cardinal principles governing the exercise of the court's power under any of the four limbs of the provision:

Recourse to the summary process ought only to be had in plain and obvious cases, and only when it can be clearly seen that a claim is, on the face of it, obviously unsustainable; and

(ii) So long as the pleadings disclose a cause of action or raise an issue fit for determination, the mere fact that the case is weak or unlikely to succeed is not a sufficient ground for striking out. Such pleadings do not amount to an abuse of the court's process.

The Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1; [2016] 3 MLJ 1 FC reaffirmed and expanded these principles. In summary, the striking out procedure under Order 18 Rule 19 ROC 2012 is a summary process reserved for only the clearest cases of unsustainability. Where a cause of action is disclosed or a triable issue raised, the pleadings must survive. The jurisdiction to strike out is not to be exercised by minute examination of the facts, and any point of law requiring serious discussion ought instead to proceed under Order 33 Rule 3 ROC 2012.

The threshold question of statutory interpretation that confronts this Court is whether the words "any application to strike out any writ or pleading" in s 68(1)(f) CJA 1964 bear a meaning that encompasses applications brought under Order 14A and Order 33 of the ROC 2012. It is trite that the task of the court is to give effect to the Legislature's intention, which must first be ascertained from the language of the statute itself: Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 2 MLJ 35 SC. Furthermore, the court must interpret a statute as written and cannot rewrite, add, or omit words, nor read provisions in isolation: Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Appeal [2019] 8 CLJ 433 FC.

The literal rule is the correct starting point. Under this rule, the words of a statute are to be given their ordinary, plain, and natural meaning, as understood in common usage, unless doing so would lead to an absurdity or is contrary to Parliamentary intent: Citibank Bhd v Mohamad Khalid Farzalur Rahaman & Ors [2000] 3 CLJ 739 CA; Tebin bin Mostapa v Hulba-Danyal bin Balia & Anor [2020] 4 MLJ 721 FC. The Federal Court in AJS v JMH and Another Appeal [2022] 1 MLJ 778 FC confirmed that where a statute is unambiguous, plain and clear, its words must be given their natural and ordinary meaning — the literal rule is the starting point, and only if ambiguity arises should the purposive approach be considered.

S 17A of the Interpretation Acts 1948 and 1967 ("IA 1948 & 1967") provides that a construction promoting the purpose or object underlying an Act shall be preferred to one that does not. However, as Augustine Paul FCJ authoritatively held in Malaysian Estates Staff Union v Rajasegaran & Ors [2006] 4 CLJ 195 FC, Section 17A can only arise where the meaning of the statutory provision is not plain and is ambiguous. If the language is plain and unambiguous, s 17A IA 1948 & 1967 does not apply. Similarly, resort to the Hansard as an aid to interpretation is only permissible where the enactment is ambiguous or obscure, or if literally construed would lead to absurdity: Chor Phaik Har v Farlim Properties [1994] 3 MLJ 346 FC.

The Supreme Court in Mohamed Noor bin Othman & Ors v Haji Mohamed Ismail bin Haji Ibrahim & Ors [1988] 3 MLJ 82 SC stated the principle unequivocally: where the words of a statute are clear, there is no room for the court to go beyond the statute's express language.

Applying the literal rule to s 68(1)(f) CJA 1964, the words of the provision are, in my considered opinion, clear and unambiguous. The provision bars appeals arising from the dismissal of "any application to strike out any writ or pleading." The natural and ordinary meaning of those words is confined to applications whose subject matter and purpose is to strike out a writ or a pleading that is, applications brought under the procedural mechanism designated for that purpose in the ROC 2012, namely Order 18 Rule 19.

The phrase "strike out any writ or pleading" in civil procedure, with a settled and specific meaning. A writ is the originating process by which civil proceedings are commenced. A pleading encompasses the statement of claim, the defence, any reply, and analogous documents. An application to "strike out" a writ or pleading under Order 18 Rule 19 ROC 2012 challenges the sustainability or propriety of those documents on their face, asking the court to declare that they disclose no reasonable cause of action, are scandalous, frivolous or vexatious, will prejudice the fair trial, or constitute an abuse of process. This is a procedural remedy of a distinct character.

It is therefore my considered opinion that s 68(1)(f) CJA 1964 is confined, by its plain and ordinary language, to striking out applications under Order 18 Rule 19(1) of the ROC 2012.

MT Ventures, although it decided on appeals arising from Order 18 Rule 19 ROC 2012 applications, it provides further support for the minority's position, both in its interpretive framework and in its specific holdings. MT Ventures held that s 68(1)(f) CJA 1064 does not operate as an absolute and blanket bar against all dismissals of striking out applications. More importantly, MT Ventures read s 68(1)(f) in conjunction with ss 67 and 3 CJA 1964, and held that the bar does not come into play where the striking out application, and the dismissal thereof, finally disposes of the rights of the parties.

Where a dismissal is grounded on a preliminary point of law such as locus standi, res judicata, or other threshold conditions, that has the capacity to finally determine the parties' rights, the right of appeal is preserved. The Federal Court in MT Ventures further held that s 68(1)(f) only bars appeals where the dismissal of the striking out application is grounded on the need for further viva voce evidence at a full trial, and where the determination of the issue does not finally dispose of the parties' rights.

For the foregoing reasons, s 68(1)(f) of the CJA 1964, properly construed on its plain, ordinary, and natural meaning, is confined to applications to strike out a writ or pleading under Order 18 Rule 19(1) of the ROC 2012.

A party's right of appeal cannot be removed unless expressly and clearly provided for by law. S 67 CJA 1964 confers upon this Court jurisdiction to hear and determine appeals from any judgment or order of the High Court in civil matters, subject to any written law governing the conditions for such appeals.

Order 18 Rule 19 ROC 2012 addresses the superficial conformity of pleadings as a sieving procedure where the threshold is whether the claim is plainly and obviously unsustainable. For this suit, I find that it does not fit the bill for such summary dismissal, as there are issues to be tried by witness testimony.

Nonetheless, to complete my judgment for this appeal, I shall delve into it as if the appeal is competent and proceed to consider the merits, where I have found it to be without merit. The reasons are set out below.

The principles are well-settled. In the locus classicus of Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 SC, the Supreme Court established that the summary procedure under Order 18 Rule 19 ROC 2012 should only be invoked in plain and obvious cases where the claim is, on its face, "obviously unsustainable." The power cannot be exercised by a minute examination of the documents and facts to determine whether a party has a cause of action. So long as the pleadings disclose some cause of action or raise some question fit to be decided by a judge, the mere fact that the case is weak is no ground for striking out.

This principle was reinforced in Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473 CA, which emphasised that the degree of unsustainability must appear on the face of the claim without the need for lengthy and mature consideration. If such detailed consideration is required, the matter must be determined at trial.

Further, under Order 18 Rule 19(2) ROC 2012, no evidence shall be admissible on an application under sub-paragraph (1)(a) of Order 18 therein. The court is confined to examining the pleadings alone when assessing whether a reasonable cause of action is disclosed.

It is trite law that appellate intervention in respect of a discretionary interlocutory order is only warranted where the appellant demonstrates that the lower court took into account irrelevant considerations, asked itself the wrong question, misdirected itself on the facts, or made an order resulting in a miscarriage of justice (see: Hatijah bt Ujoh v Fazilah bt Julaili [2024] MLJU 3896 HC, applying RHB Bank Bhd v Nordin bin Suboh & Anor [2011] 4 MLJ 99 CA).

The Defendants bear the burden of demonstrating such an error. For the reasons that follow, I find that the learned SCJ committed no such error and exercised her discretion correctly.

The Existence of a Contractual Relationship is a Triable Issue

The central plank of the Defendants' case is that there was no privity of contract between the Plaintiff and the Defendants, and that the Defendants were subcontracted by Col & Match Interior Sdn Bhd ("Col & Match"), a third party appointed by the Plaintiff. They argue this renders the claim obviously unsustainable.

This Court is unable to agree. The question of whether a contractual relationship exists between the Plaintiff and the Defendants is, on the materials before this Court, a genuinely contested issue of fact that cannot be resolved on the pleadings alone.

The following matters demonstrate that this issue is far from "plain and obvious":

Prior engagement: The evidence before the learned SCJ showed that D1 was initially engaged directly by the Plaintiff in May 2021 for the supply and installation of solid teakwood timber flooring and skirting (the "4/5 Quotation"). A deposit of RM57,746.25 was paid directly by the Plaintiff to D1 in September 2021 for this engagement.

The Quotation: D1 subsequently issued a further quotation dated 22 November 2023 for the ceiling panel works that form the subject matter of this suit. Both quotations were issued by D1 and relate to works at the same Premises.

Direct payments: The Plaintiff made direct payments to D1 for the works. While the Defendants contend that direct payments to a sub-contractor do not in themselves create contractual privity (relying on Am Focus Plumbing Sdn Bhd v Vistasik Sdn Bhd & Ors [2022] MLJU 774 HC), the factual matrix here is distinguishable. In Am Focus Plumbing, the payments were made at the request of a separate contracting party. Here, the Plaintiff asserts the payments were made pursuant to his own direct engagement of D1, and no evidence of any contract between Col & Match and D1 for these works has been produced by the Defendants.

Role of Col & Match: The Plaintiff's case is that Col & Match was instructed by the Plaintiff to liaise with the Defendants for coordination purposes, and that the Col & Match quotation did not include the Defendants' ceiling panel works. The Plaintiff asserts that the Defendants were first engaged and appointed by the Plaintiff back in 2021, prior to Col & Match's involvement in 2023. This account is supported by the Third Party's Defence filed by Col & Match itself.

Absence of documentation supporting the Defendants' case: It is significant that the Defendants have produced no contemporaneous documents, such as letter of award, contract or purchase order as proof that Col & Match appointed them for the ceiling works. The Defendants' narrative rests on bare assertions.

The Defendants further relied on LNH Landscaping Sdn Bhd v TKH Construction Sdn Bhd and other appeals [2021] MLJU 761 HC for the proposition that a sub-contractor has no privity with the employer. However, this case is distinguishable on the facts. In LNH Landscaping, there was a clear letter of award between the main contractor (TKH) and the sub-contractor (LNH), establishing the contractual chain. Here, no such document exists between Col & Match and the Defendants, and the Plaintiff has produced quotations issued directly by D1 for works at the Plaintiff's Premises.

The Defendants also argue that the Quotation was addressed to "Dato' Alex" and not to the Plaintiff, and therefore the Plaintiff could not have accepted it. While this is a point the Defendants are entitled to raise, it is precisely the type of factual dispute that requires oral evidence and cross-examination to resolve. The addressee of a quotation and the identity of the actual contracting party may not always be the same person, and this is a matter for trial.

In the circumstances, I find that the learned SCJ was correct to hold that the existence or otherwise of a contractual relationship between the Plaintiff and the Defendants is a triable issue that cannot be resolved without a full hearing. The Defendants' argument that the absence of privity is so "plain and obvious" as to warrant summary disposal is not borne out by the materials before the Court.

(ii) The Plaintiff's Claim in Tort is Not Obviously Unsustainable

The Defendants submit that the learned SCJ failed to properly analyse the Plaintiff's claim in tort and that, given the chain of contracting (Plaintiff $ \rightarrow $ Col & Match $ \rightarrow $ D1) and the lack of direct interaction, proximity between the Plaintiff and the Defendants cannot be established.

I note that the Plaintiff's claim is not founded solely in contract. The Plaintiff has pleaded causes of action in the tort of negligence and has invoked the principle of res ipsa loquitur in respect of the Fall Event, namely the sudden collapse of the ceiling panel structure installed by the Defendants at the Plaintiff's residential premises.

The three-part test for duty of care in Caparo Industries Plc v Dickman [1990] 2 AC 605 and applied by the Court of Appeal in Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360 CA requires the foreseeability of damage, proximity of relationship, and fairness of imposing a duty. All these involve a fact-sensitive inquiry.

It is arguable that a party who installs a ceiling panel structure at a residential property owes a duty of care to the occupants of that property, regardless of the contractual chain through which the installer came to be engaged. The ceiling was installed at the Plaintiff's home, where the Plaintiff and his family reside. Whether the damage was reasonably foreseeable, whether sufficient proximity existed, and whether it is fair and reasonable to impose a duty of care are all questions that require factual determination at trial, including expert testimony on the cause of the collapse and the standard of workmanship.

The Defendants' contention that the passing of control of the premises to Col & Match broke the chain of causation is itself a factual assertion that cannot be determined summarily. Whether control passed, to whom, and what effect this had on the causal chain are matters requiring oral evidence.

The invocation of res ipsa loquitur further reinforces the need for a trial. The ceiling panel collapsed approximately one year after installation. On the face of it, a properly installed ceiling panel should not collapse in ordinary circumstances. The Defendants, as the installers, are the parties best placed to explain why the collapse occurred, and this explanation can only be tested through viva voce evidence.

Accordingly, I find that the Plaintiff's tort claim is not obviously unsustainable and the learned SCJ did not err in refusing to strike it out.

(iii) The Claim Against D2 and the Corporate Veil Issue

The Defendants submit that the claim against D2 (as shareholder and director of D1) is an impermissible attempt to pierce the corporate veil, relying on the Salomon v Salomon principle as reflected in s 20 of the Companies Act 2016, and the cases of Aspatra Sdn Bhd v Bank Bumiputra Malaysia Bhd [1988] 1 MLJ 97 SC and Hotel Jaya Puri Bhd v National Union of Hotel, Bar & Restaurant Workers [1980] 1 MLJ 109 FC. The Defendants further contend that the Sessions Court's grounds of judgment are silent on this issue.

I observe that the Plaintiff's claim against D2 is not premised on piercing the corporate veil. The Plaintiff has pleaded that D2 personally acted as the project manager, representative, and expert, managing and supervising the works at the Premises. The claim against D2 is founded on the tort of negligence and on representations allegedly made by D2 that he and D1 are professionals and timber specialists.

Where a director is sued not in his capacity as a director qua the company's obligations, but for his own personal tortious acts like personal negligence in the supervision and management of works and as such, the Salomon principle is not engaged. A director who personally commits a tort is personally liable for that tort, a distinction from attempts to attribute the company's liabilities to the director.

Whether D2 did in fact personally supervise the works, whether he made the alleged representations, and whether such conduct gives rise to personal tortious liability are all matters that require factual inquiry at trial. The learned SCJ cannot be faulted for declining to strike out this aspect of the claim at the interlocutory stage.

(iv) The Third Party Notice Does Not Constitute an Admission

The Defendants also submit that the Sessions Court may have mistakenly treated the Defendants' Third Party Notice against Col & Match as an admission that the Plaintiff's case against the Defendants had merit. The Defendants clarify that the Third Party Notice is a protective and contingent measure.

I accept that a Third Party Notice is not, in itself, an admission of liability to the Plaintiff. However, the filing of a Third Party Notice is consistent with the existence of triable issues. A defendant who genuinely believed the claim against it was unanswerable at the threshold level would have little reason to seek contribution or indemnity from a third party. The Third Party proceedings, at a minimum, acknowledge that questions of liability remain to be resolved and that the allocation of responsibility between the Defendants and Col & Match is a live issue that can only be determined at trial.

The Learned SCJ Correctly Identified Triable Issues

The learned SCJ identified nine issues to be tried, including:

whether a contractual relationship existed between the Plaintiff and the Defendants;

(ii) which party actually appointed the Defendants;

(iii) the quality and compliance of the works;

(iv) the true cause of the ceiling collapse;

the suitability of the timber and structure used;

(vi) the scope of work and instructions;

(vii) whether the Defendants communicated the limitations of the ceiling structure;

(viii) the existence and scope of the duty of care; and

(ix) the Defendants' liability in respect of the Fall Event.

I agree with the learned SCJ that these are genuine triable issues that cannot be resolved on the pleadings alone. The Plaintiff's Statement of Claim discloses reasonable causes of action in both contract and tort. The factual disputes between the parties, particularly regarding who engaged the Defendants, the nature and scope of the relationship, the cause of the collapse, and the standard of workmanship are obvious matters that require oral and documentary evidence, including expert testimony, to be resolved.

As the Federal Court held in New Straits Times (Malaysia) Berhad v Kumpulan Kertas Niaga Sdn Bhd & Anor [1985] 1 MLJ 226 FC, where triable issues of fact have been raised, those issues can only be fairly resolved by evidence viva voce at a trial and not merely by affidavit evidence. The parties should be open to crossexamination on the disputed facts.

For the foregoing reasons, this Court finds that:

The Plaintiff's claim is not "obviously unsustainable" on its face. The claim discloses reasonable causes of action in contract, tort, and statute, and raises multiple genuine triable issues.

The learned SCJ did not err in the exercise of her discretion. She correctly applied the established principles from Bandar Builder and the New Straits Times, and her identification of nine triable issues was well-founded on the materials before her.

The Defendants have failed to demonstrate any error in law, misdirection on facts, or consideration of irrelevant factors by the learned SCJ that would warrant appellate intervention.

This is not a "plain and obvious" case warranting summary disposal. The factual complexities surrounding the Defendants' engagement, the role of Col & Match, the cause of the ceiling collapse, and the scope of any duty of care owed to the Plaintiff all require determination at a full trial.

Accordingly, this appeal is dismissed with costs. The parties are directed to proceed to trial in the Sessions Court for the determination of the Plaintiff's claim on its merits. Dated: 19 June 2026 Arziah binti Mohamed Apandi Judge Kuala Lumpur High Court NCvC 8 Wilayah Persekutuan Kuala Lumpur Appellant Counsel: Mr. Thong Chee Wei (together with him Mr. Ee Kim Hau) Messrs Chee Whei, Lee & Co. Petaling Jaya, Selangor Darul Ehsan Tel. No.: 012-2711493 Email: cwthong@cwllaw.my/info@cwllaw.my Respondent Counsel: Ms. Kwan Ru En (together with her Ms Lim Cherlyn) Messrs Ming & Partners Kuala Lumpur Tel. No.: 03-6411 9388 Email: info@mingpartners.com Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 710 SC Cases referred: MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1; [2016] 3 MLJ 1 FC Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985] 2 MLJ 35 SC Martego Sdn Bhd v Arkitek Meor & Chew Sdn Bhd & Another Appeal [2019] 8 CLJ 433 FC Citibank Bhd v Mohamad Khalid Farzalur Rahaman & Ors [2000] 3 CLJ 739 CA Tebin bin Mostapa v Hulba-Danyal bin Balia & Anor [2020] 4 MLJ 721 FC AJS v JMH and Another Appeal [2022] 1 MLJ 778 FC Malaysian Estates Staff Union v Rajasegaran & Ors [2006] 4 CLJ 195 FC Chor Phaik Har v Farlim Properties [1994] 3 MLJ 345 FC Mohamed Noor bin Othman & Ors v Haji Mohamed Ismail bin Haji Ibrahim & Ors [1988] 3 MLJ 82 SC MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 FC Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 SC Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473 CA Hatijah bt Ujoh v Fazilah bt Julaili [2024] MLJU 3896 HC RHB Bank Bhd v Nordin bin Suboh & Anor [2011] 4 MLJ 99 CA Am Focus Plumbing Sdn Bhd v Vistasik Sdn Bhd & Ors [2022] MLJU 774 HC LNH Landscaping Sdn Bhd v TKH Construction Sdn Bhd and other appeals [2021] MLJU 761 HC Caparo Industries Plc v Dickman [1990] 2 AC 605 Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360 COA Aspatra Sdn Bhd v Bank Bumiputra Malaysia Bhd [1988] 1 MLJ 97 SC Hotel Jaya Puri Bhd v National Union of Hotel, Bar & Restaurant Workers [1980] 1 MLJ 109 OCJ KL New Straits Times (Malaysia) Berhad v Kumpulan Kertas Niaga Sdn Bhd & Anor [1985] 1 MLJ 226 FC Acts/Law referred: Order 18 Rule 19 of the Rules of Court 2012 Section 28(1)(c) of the Courts of Judicature Act 1964 Section 68(1)(f) of the Courts of Judicature Act 1964