Dato' Sri Haji Shafiz bin Dato' Haji Shahrani v C Plus Logistics Sdn. Bhd. (BA-22NCC-149-07/2025)

DATO’ SRI HAJI SHAFIZ BIN DATO’ HAJI SHAHRANI [NRIC NO.: 790904-10-5681]

ASIA BINTI HAJI MOHAMED [NRIC NO.: 620102-71-5152] … PLAINTIFFS

C PLUS LOGISTICS SDN. BHD. [REGISTRATION NO.: 20100100493 (886070 -K)]

CHING HENG SHARE [NRIC NO.: 860425 -43-5641]

TAN CHEE MENG [NRIC NO.: 710829 -10-5039]

RUHAMDAN BIN AB HAMID [NRIC NO.: 761124 -03 -5659] …DEFENDANTS

This is the Defendants’ application in Enclosure 8 to strike out the Plaintiffs’ action under Order 18 Rule 19 of the Rules of Court 2012

The Plaintiffs’ action is founded on alleged abuse of court process or malicious institution of civil proceedings, and conspiracy to injure. The complaint arises from the Defendants’ act in commencing Shah Alam High Court Suit No. BA-22NCC-112-06/2025, formerly Kuala Lumpur High Court Suit No. WA-22NCC-657-09/2024, referred to in these grounds as Suit 112.

After hearing the parties and considering the pleadings, affidavits, submissions and authorities, I allowed Enclosure 8. I struck out the Plaintiffs’ action with costs of RM10,000, subject to the allocator.

The 1st Plaintiff, Dato’ Sri Haji Shafiz bin Dato’ Haji Shahrani, is pleaded as a former director of Shapadu Properties Sdn Bhd. He was also a director and shareholder of Shapadu Corporation Sdn Bhd, which owned Shapadu Properties.

The 2nd Plaintiff, Asia binti Haji Mohamed, is pleaded as the Group Chief Human Capital and Shared Services Officer of Shapadu Corporation. Before that, she was the General Manager in the Group Executive Chairman’s office of Shapadu Corporation.

The 1st Defendant, C Plus Logistics Sdn Bhd (C Plus), is the company which commenced Suit 112 against the Plaintiffs.

The 2nd to 4th Defendants are directors and shareholders of the 1st Defendant. The Plaintiffs plead that they (the 2nd to 4th Defendants) collectively owned and controlled the 1st Defendant, were its directing minds, and caused Suit 112 to be filed.

The background begins with a tenancy agreement dated 30.5.2017. C Plus was the owner of the premises at No. 10, Jalan Pelabur 23/1, Seksyen 23, 40000 Shah Alam, Selangor. C Plus leased the premises to Shapadu Properties.

On 15.10.2019, C Plus commenced Shah Alam High Court Suit No. BA-22NCVC-450-10/2019 (Suit 450), against Shapadu Properties. In Suit 450, C Plus claimed, among others, vacant possession, outstanding rental and double rental under the tenancy agreement.

At the time Suit 450 was commenced, Shapadu Properties was in liquidation under a winding-up order dated 20.6.2019. C Plus then obtained leave under section 471 of the Companies Act 2016 to continue Suit 450 against Shapadu Properties.

On 15.6.2020, C Plus obtained Judgment in Default of Defence (JIDD) against Shapadu Properties in Suit 450. The JIDD ordered, among others, delivery of vacant possession, payment of outstanding rental and payment of double rental.

In the course of the first winding up, the 1st Plaintiff filed a Statement of Affairs (SOA) on 16.1.2020. The Plaintiffs say C Plus was not listed as a creditor in the SOA because the C Plus claim was disputed and because Shapadu Properties intended to challenge the JIDD and the section 471 leave.

Shapadu Corporation later applied to terminate the first winding up of Shapadu Properties. A notice of intended dividend was published in the Federal Government Gazette. The Plaintiffs say the final proof date was 13.8.2020. They say C Plus only filed its first proof of debt on 22.9.2020, which was after the final proof date and after Shapadu Corporation had paid the settlement sum for the termination application.

The termination order was granted on 24.9.2020. The Plaintiffs say they only came to know of C Plus’ first proof of debt after an email from the Official Receiver dated 1.10.2020.

After the termination order, Shapadu Properties took steps to set aside the Section 471 leave. Those efforts were not successful. C Plus also presented a second winding-up petition against Shapadu Properties based on the JIDD. The second winding-up order was granted on 26.4.2022.

On 19.4.2023, C Plus lodged a second proof of debt in the sum of RM3,800,520.99. The Plaintiffs say the second proof of debt was also premised on the JIDD.

On 24.9.2024, C Plus commenced Suit 112 against the present Plaintiffs. In Suit 112, C Plus pleaded fraudulent trading under section 540 of the Companies Act 2016 and conspiracy to injure.

The reliefs sought by C Plus in Suit 112 include:

a declaration under section 540 of the Companies Act 2016 that the Plaintiffs were knowingly parties to the carrying on of the business of Shapadu Properties with intent to defraud C Plus as creditor of Shapadu Properties, or for a fraudulent purpose;

a declaration that the Plaintiffs are personally and jointly responsible, without limitation of liability, for the debts and liabilities of Shapadu Properties due and owing to C Plus;

the sum of RM3,800,520.99; and

the sum of RM239,350.21 as legal fees.

C Plus’s cause of action in Suit 112 is premised on three main allegations. First, C Plus alleges that the Plaintiffs caused Shapadu Properties to enter into the tenancy agreement, occupy and operate its business on the premises, although Shapadu Properties was commercially insolvent and had no intention or ability to pay rent. Second, C Plus alleges that the Plaintiffs knew of the debt due to C Plus but deliberately or dishonestly excluded C Plus from the SOA. Third, C Plus alleges that the Plaintiffs denied C Plus the right to be paid and to participate in the termination application.

On 30.7.2025, the Plaintiffs filed the present action against C Plus and the 2nd to 4th Defendants. The present action is a response to Suit 112. The Plaintiffs plead that Suit 112 was filed wrongfully, maliciously and for a collateral purpose.

The Plaintiffs say Suit 112 is a tactical manoeuvre to circumvent the pari passu principle and to recover the RM3.8 million claim which C Plus had already pursued against Shapadu Properties through Suit 450, the JIDD and the proof of debt process.

The Plaintiffs also say Suit 112 seeks to re-litigate matters already determined in Suit 450, and that C Plus is trying to impose personal liability on the Plaintiffs for a debt of Shapadu Properties.

The Defendants deny this. They say Suit 112 is a distinct statutory claim under section 540 of the Companies Act 2016. They say Suit 450 was a contractual claim against Shapadu Properties, whereas Suit 112 is a claim against the Plaintiffs personally for fraudulent trading and conspiracy. The Defendants say those causes of action are different and the filing of Suit 112 is not barred by res judicata.

It is also material that the Plaintiffs filed a striking out application in Suit 112. That application was dismissed on 9.2.2026. In that decision, the Court held that C Plus had a valid cause of action or complaint against the Plaintiffs in relation to the SOA, the termination of the first winding up, the payment to creditors of Shapadu Properties to the exclusion of C Plus, and Shapadu Properties’ continued occupation of the premises when insolvent. The Court also held that Suit 112 was not an abuse of process.

Suit 112 remains pending. The parties are preparing for trial in that suit.

By Enclosure 8, the Defendants applied to strike out the Plaintiffs’ action under Order 18 Rule 19(1)(a), (b) and (d) of the ROC. The Defendants say the Plaintiffs’ claim:

discloses no reasonable cause of action;

is scandalous, frivolous and vexatious; and

is otherwise an abuse of the process of the Court.

The Defendants’ grounds may be summarised as follows:

the tort of malicious institution of civil proceedings is not recognised in Malaysia;

the Plaintiffs’ allegation that Suit 112 is abusive has already been rejected in Suit 112;

Suit 112 is a valid Section 540 Companies Act 2016 claim;

Suit 450 and Suit 112 are different causes of action;

the Plaintiffs can defend themselves fully in Suit 112;

the present action duplicates Suit 112 and raises the same issues under a different label; and

the present action is a collateral attack on Suit 112.

The Plaintiffs objected to Enclosure 8. Their grounds may be summarised as follows:

Enclosure 8 is irregular because the Defendants relied on affidavit evidence although the application was brought under Order 18 rule 19(1)(a);

striking out is a drastic remedy and should only be granted in plain and obvious cases;

the Plaintiffs have a right to bring a separate action for abuse of process or malicious institution of civil proceedings;

the claim raises triable issues on whether Suit 112 was filed for a genuine purpose or for a collateral purpose;

the allegations involve malice, intention, conspiracy and abuse, which should not be decided summarily;

there is no multiplicity or duplicity because the present action concerns the Defendants’ conduct in filing Suit 112, while Suit 112 concerns the Plaintiffs’ alleged liability under section 540; and

the action should proceed to trial. Analysis and Findings The applicable principles on striking out

Order 18 Rule 19(1) of the ROC gives the Court power to strike out a pleading if it discloses no reasonable cause of action, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial of the action, or is otherwise an abuse of the process of the Court.

Under Order 18 Rule 19(2), no evidence is admissible for an application under rule 19(1)(a). The Plaintiffs relied on New Straits Times (Malaysia) Sdn Bhd v Kumpulan Kertas Niaga Sdn Bhd & Anor [1985] 1 MLJ 226; [1984] 1 MLRA 771 and Balasupramaniam a/l R Letchumanan v Datuk Nallakaruppan a/l Solaimalai [2013] 8 MLJ 505 for this proposition.

I accept that principle. Where the application is confined to Order 18 Rule 19(1)(a), the Court looks only at the pleadings. However, Enclosure 8 was not confined to Rule 19(1)(a). The Defendants also relied on rule 19(1)(b) and Rule 19(1)(d). For those limbs, affidavit evidence may be considered.

The Defendants relied on See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 and Amanah Raya Bhd v Ong Chin Hoo [2019] 6 CLJ 41. These authorities support the proposition that a party may rely on more than one limb under Order 18 Rule 19, and the use of affidavit evidence does not invalidate the entire application merely because Rule 19(1)(a) is also invoked.

I therefore reject the Plaintiffs’ preliminary objection. The proper approach is to consider the pleadings alone for the purpose of Rule 19(1)(a), and to consider the affidavit evidence only for the other limbs.

The Plaintiffs also relied on Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473 and Tan Wei Hong v Malaysia Airlines Bhd [2018] 6 MLRA 433. The principle is settled. Striking out is a summary and drastic remedy. It should only be used in a plain and obvious case. The Court should not conduct a mini-trial or decide disputed facts on affidavit evidence.

I accept that caution. The Court must not strike out merely because the claim appears weak. It must be shown that the action is plainly unsustainable, or that allowing it to continue would amount to an abuse of process.

The question in this case is therefore not whether the Plaintiffs will ultimately fail after trial. The question is whether this separate action, when Suit 112 remains pending and when the same complaint has been raised in Suit 112, can properly be allowed to proceed. The Plaintiffs’ pleaded cause of action

The Plaintiffs framed the claim as abuse of civil process or malicious institution of civil proceedings, and conspiracy to injure. The cause of action is built on the filing of Suit 112.

In Malaysia Building Society Bhd v Tan Sri General Ungku Nazaruddin Bin Ungku Mohamed [1998] 2 MLJ 425, the Court of Appeal recognised the concept of collateral abuse of process. The principle is that a litigant may invoke the court process for genuine relief. But where the process is used for a collateral purpose, for example, to oppress the other party, it may become an abuse of process.

The Plaintiffs relied on MBSB to submit that a separate tortious action may be brought where a party uses court proceedings for a collateral purpose. They also relied on Conweld Engineering Sdn Bhd & Ors v Goh Swee Boh @ Goh Cheng Kin & Anor [2022] 6 MLJ 810; [2022] MLRAU 243.

I accept the legal proposition that abuse of process may arise where court process is used for an improper collateral purpose. However, that does not answer the present application. The question is whether, on the facts pleaded, the Plaintiffs’ separate action should be allowed to proceed while Suit 112 itself remains pending.

The Plaintiffs’ claim is not based on conduct independent of Suit

The complaint is the filing and prosecution of Suit 112 itself. The pleaded loss also flows from Suit 112, including legal fees, inconvenience, distress, reputational harm and alleged commercial prejudice.

The Plaintiffs say Suit 112 was filed to sidestep the winding up process, to avoid pari passu distribution, to re-litigate the JIDD and the second proof of debt, and to impose personal liability on the Plaintiffs. I am of the view that these are matters that go directly to the merits and propriety of Suit 112.

Hence, I find that the Plaintiffs’ claim is parasitic on Suit 112. It cannot be decided without examining whether Suit 112 is valid, whether section 540 was properly invoked, whether C Plus had a genuine claim, and whether the Plaintiffs’ alleged conduct in relation to the SOA, termination application and continued occupation of the premises supports Suit 112.

Those issues are the very issues that arise in Suit 112. Effect of the dismissal of the striking out application in Suit 112

A significant fact is that the Plaintiffs had already applied to strike out Suit 112. That application was dismissed on 9.2.2026.

The order in Suit 112 did not finally determine the merits of the section 540 claim. However, it did decide that Suit 112 was not plainly unsustainable and that it was not an abuse of process at the striking out stage.

In the present suit, the Plaintiffs ask this Court to proceed on the opposite premise, that Suit 112 is abusive, malicious and without reasonable basis.

I accept that the decision in Suit 112 does not create strict res judicata against every issue in the present action. Suit 112 has not gone to trial. However, the decision is still highly relevant. It shows that the Plaintiffs’ complaint about Suit 112 being abusive has already been tested at the interlocutory stage in Suit 112 and rejected.

The Plaintiffs remain entitled to defend Suit 112 at trial. But they should not be permitted to commence a separate action which requires another Court to examine the same complaint before Suit 112 is determined.

This is why I find the present action to be a collateral challenge. It invites this Court to assess and condemn Suit 112 while Suit 112 remains pending before another Court.

The Plaintiffs submit that Suit 112 is an attempt to re-litigate the RM3.8 million claim already determined in Suit 450 and pursued by proof of debt. They say C Plus is trying to recover the same debt through a different route.

The Defendants submit that Suit 450 and Suit 112 are legally distinct. Suit 450 was a contractual claim against Shapadu Properties under the tenancy agreement. Suit 112 is a statutory claim under section 540 of the Companies Act 2016 against the Plaintiffs personally. The Defendants relied on section 540 and cases on fraudulent trading (see Lai Fee & Anor v Wong Yu Vee & Ors [2023] 3 MLJ 503, Huat Ah Sdn Bhd v Yap Chee Kian & Ors [2020] 8 MLJ 98, Geodis Malaysia Sdn Bhd (formerly known as Geodis Wilson Freight Management Sdn Bhd) v Kang Beng Koon & Ors [2024] MLJU 3499, and SS Minerals Trading Sdn Bhd v Ibrahim bin Mat Seddek & Ors [2024] MLJU 1138).

For purposes of Enclosure 8, I need not determine the merits of C Plus’ section 540 claim. It is enough to note that the issue whether Suit 112 is a genuine section 540 claim or a disguised attempt to recover the Suit 450 debt is a live issue in Suit 112.

The Plaintiffs can raise their objections in Suit 112. They can say that C Plus is re-litigating Suit 450, that the claim is barred, that the claim is oppressive, or that the section 540 claim is not made out. They are not deprived of that defence.

What they cannot properly do is to create a second suit asking this Court to determine the same allegations as a separate tortious claim while Suit 112 is pending. The complaint on malicious institution of civil proceedings

The Defendants relied on Ng Wai Pin v Ong Yew Teik and other appeals [2025] 3 MLJ 764; [2025] 4 MLRA 513. They submit that tort of malicious institution of civil proceedings is not recognised in Malaysia.

The Plaintiffs sought to meet this by relying on MBSB and by presenting the claim as abuse of process, not merely malicious prosecution.

I do not decide this application solely on the basis that malicious institution of civil proceedings is not recognised. The safer and more direct ground is abuse of process by duplication and collateral challenge.

Even assuming that the Plaintiffs may plead abuse of process as a tort in an appropriate case, the present action remains unsustainable because it depends entirely on the proposition that Suit 112 is abusive. That question belongs in Suit 112, at least while that suit remains pending.

Put simply, the problem is not merely the label of the tort. The problem is the structure of the claim. The claim for conspiracy

The Plaintiffs also plead conspiracy to injure. The alleged conspirators are C Plus and its directors. The alleged wrongful act is the filing of Suit 112.

The conspiracy claim does not add an independent factual foundation. It is also tied to the complaint that Suit 112 was commenced wrongfully.

Therefore, if the present suit is an abuse because it is a collateral challenge to Suit 112, the conspiracy claim cannot independently survive. It depends on the same factual foundation and the same allegation of improper filing of Suit 112. Duplication, multiplicity and staggered litigation

The Plaintiffs submit that there is no multiplicity because the causes of action are different. Suit 112 concerns C Plus’ section 540 claim against them. The present action concerns the Defendants’ conduct in filing Suit 112.

I do not accept that submission. The Court must look at substance, not merely form. A party cannot avoid duplication by changing the legal label while relying on the same factual matrix and inviting the Court to decide the same core issues.

The present action arises from the same factual matrix as Suit 112. It concerns the same tenancy agreement, Suit 450, the JIDD, the winding up, the SOA, the proof of debt, the termination application, the continued occupation of the premises, and the section 540 allegations.

The Plaintiffs themselves accepted that, if the present action remains, it may have to be consolidated with Suit 112. That position confirms the overlap. If consolidation is necessary, the Court is entitled to ask why a second suit was filed at all.

This is not a case where the second suit adds a separate and necessary dispute that cannot be dealt with in the first suit. The Plaintiffs’ complaint can be ventilated in Suit 112 as a defence, objection, or appropriate interlocutory relief.

The Court will not permit staggered litigation. Parties are expected to advance their whole case arising from the same dispute in a focused and orderly manner. Litigation should not proceed in separate fragments where the effect is to duplicate issues, multiply proceedings, and risk inconsistent findings.

The Plaintiffs are entitled to defend themselves strongly in Suit 112. But they are not entitled to burden the Court and the parties with a parallel action which re-packages the same dispute as a separate tort claim before Suit 112 is determined.

The concern is not only administrative convenience. It goes to the integrity of the court process. If parties are permitted to file staggered litigation each time they re-think their cause of action or strategy, litigation will become unfocused and oppressive. The court process must remain available for real disputes, but it must not be used in a way that creates unnecessary duplication in the name of justice.

In Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, the Privy Council recognised the inherent jurisdiction of the Court to prevent abuse of process. In Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16, the Supreme Court recognised that the Court retains inherent jurisdiction to prevent abuse even if the case may not fall within the express wording of Order 18 rule 19.

In Pengiran Othman Shah bin Pengiran Mohd Yussof & Anor v Karambunai Resorts Sdn Bhd & 3 Ors [1996] 1 CLJ 257, the Court of Appeal cautioned that striking out is only appropriate in plain and obvious cases, but also recognised that the Court must consider whether the pleaded claim is sustainable.

In Syarikat Bekalan Air Selangor Sdn Bhd v Kerajaan Negeri Selangor [2014] 4 MLJ 147, the Court dealt with the Court’s power to strike out where the pleading does not disclose a sustainable claim. Lama Tile (Timur) Sdn Bhd v Lim Meng Kwang & Anor [2015] 4 MLJ 85 and Lee Lay Kin v Foo Wan Yung [2022] 6 CLJ 779 were cited on the distinction between legitimate separate proceedings and cases where the later proceeding is used to re-litigate or duplicate issues.

The present case falls within the latter category. The Plaintiffs’ claim is not truly independent. It is a second proceeding challenging the legitimacy of the first proceeding.

The Plaintiffs submit that striking out would deprive them of their right to have the abuse of process and conspiracy claims tried.

I do not accept that there is real prejudice in the circumstances of this case.

The Plaintiffs remain defendants in Suit 112. They may defend Suit 112 fully. They may challenge C Plus’ section 540 claim, deny fraudulent trading, dispute the allegation of exclusion from the SOA, explain the termination application, contest the proof of debt issue, and answer the allegation of conspiracy.

Those matters are not lost. They remain alive in Suit 112.

In contrast, allowing the present suit to continue would cause real prejudice to the Defendants and to the court process. The Defendants would have to defend overlapping claims in two suits. There is also a real risk of inconsistent findings on the same factual matrix.

The balance of prejudice therefore supports striking out. No need for a mini trial

I am conscious that the Plaintiffs say the matter involves triable issues. But not every factual dispute prevents striking out.

The Court is not deciding whether the Plaintiffs committed fraudulent trading. The Court is not deciding whether Suit 112 will succeed. The Court is deciding whether the present action should proceed separately.

That question can be answered from the pleadings, affidavits and the procedural history. It does not require a full trial. The structure of the present action shows that it is a collateral challenge to Suit 112 and amounts to an abuse of process.

The Plaintiffs’ reliance on the triable issue principle does not answer the abuse point. A triable issue in the wrong forum, or a triable issue already being ventilated in another pending suit, does not justify maintaining a duplicative action.

For the reasons stated above, I find that the Plaintiffs’ action is premised on the allegation that Suit 112 was instituted wrongfully.

It is not disputed that the Plaintiffs’ application to strike out Suit 112 was dismissed, and the Court held that Suit 112 discloses a valid cause of action and is not an abuse of process.

The present action arises from the same factual matrix and substantially overlaps with Suit 112, which remains pending. The Plaintiffs themselves accepted that, if allowed to proceed, the present action may require consolidation with Suit 112. This confirms the duplication.

I reiterate that the Court will not permit staggered litigation. Parties are expected to advance their whole case arising from the same dispute in a single proceeding, where that can properly be done. The present action adds no independent cause of action that requires separate adjudication at this stage. It would require re-litigation of issues properly to be determined in Suit 112.

In substance, the present action is a collateral challenge to Suit 112 and an abuse of process.

Further, the Plaintiffs will suffer no real prejudice. They remain entitled to defend Suit 112 and raise all relevant matters there.

In these circumstances, I find that the Plaintiffs’ claim discloses no reasonable cause of action and amounts to an abuse of process.

Enclosure 8 is allowed. The Plaintiffs’ action is struck out. Costs of RM10,000 are awarded to the Defendants, subject to allocator. Dated this: 11 June 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Plaintiffs : Wilson Lim Mao Shen together with Huam Wan Ying Messrs Wilson Lim For the Defendants : Lau Kee Sern together with