1. ) Lin Kai Lam v Colin Andrew Pereira (WA-22NCvC-387-06/2018)

LIN KAI LAM

WONG SOU FUAN (NO. K/P : 600728-10-5788) ...PLAINTIF DAN COLIN ANDREW PEREIRA (NO. K/P : 670728-10-6223) …DEFENDAN

The Plaintiffs’ claim against the Defendant a lawyer, is for the Defendant’s conduct in handling a civil matter on behalf of the Plaintiff in a civil claim filed in the High Court of Shah Alam bearing the registration number 22NCVC-709-06/2012. 20/06/2023 11:29:57

After perusing the Plaintiff’s claim, the Court struck off the Plaintiffs’ Statement of Claim for being defective in being noncompliance with the provisions of the Rules of Court 2012 (“the Rules”).

The 1st defect is that the entire contents of the Statement of Claim filed in the Shah Alam High Court was reproduced in the SOC. This reproduction is unnecessary and not allowed as it forms part of evidence to be adduced during the trial. Only facts and not the evidence that should be pleaded in the SOC.

The reproduction of the entire statement of claim of the Shah Alam Court is a clear cut breach of Order 18 Rule 7(1) which states as follows: 1) Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits. (emphasis mine)

The 2nd defect is the non-clarity of the cause of action relied upon by the Plaintiff in the SOC. Paragraph 10 of the SOC is worded as follows: “Defendan dalam pelanggaran kontrak dan/ atau secara lalai gagal melaksanakan penjagaan dan kemahiran ynag diharapkan oleh peguamcara yang kompeten”.

A reading of this paragraph indicates that the cause of action is either a breach of contract or a breach of fiduciary duty. However further down in the same paragraph of the SOC is stated as follows: “Oleh sebab butiran kecuaian di atas Plaintif-Plaintif telah mengalami kerugian”.

The subsequent paragraph seems to indicate the cause of action relied upon by the Plaintiffs is negligence. It is this negligence according to the Plaintiff in the SOC that has caused the losses suffered by the Plaintiffs.

As the cause of action in the SOC is unclear it breaches Order 18

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words- (emphasis mine)

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

The 3rd defect in the SOC is that the Plaintiffs have quantified the losses suffered by claiming a specific sum which is the same amount claimed in the Shah Alam High Court. This is tantamount to litigating a matter decided earlier by another court. This is clear abuse of the process of Court.

A further defect in specifying the amount of damages in the SOC breaches Order 18 Rule 12 1A which states:

No party shall quantify any claim or counterclaim for general damages. Powers of the Court in striking out the SOC

The Court has been given wide powers under Order 34 of the Rules to ensure a just, expeditious and economical disposal of a case. Order 34 Rule 1 states;

Orders and directions for just, expeditious and economical disposal of proceedings (O. 34 r. 1)

Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that- (emphasis mine)

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

Under Order 18 Rule 19 the Court is empowered to strike out a case summarily if there is an abuse of the process of court. Order 18 Rule 19 states:

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. (emphasis mine)

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

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

Further Order 92 Rule 4 confers an inherent powers on Court in order to uphold justice. The provision states:

Inherent powers of the Court (O. 92 r. 4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.

The Court is aware of Order 20 of the Rules which allows for amendment to the SOC. In this case the Court deemed it not appropriate to allow amendment as the amendments would be tantamount to a drafting a new SOC altogether. The Court feels that the defects in the SOC are too many to allow for an amendment.

In the upshot the Court struck out the Plaintiffs claim with no order as to cost but with a liberty to file afresh. Dated: 16.6.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Mas Kumar Block A3, Level 2, Suite 211 Leisure Commerce Square 9, Jalan PJS 8/9, PJS 8, 46150 Petaling Jaya, Selangor For the Defendant: Tetuan Skrine Wisma UOA Damansara, 50-8-1, 8th Floor, 50, Jalan Dungun, Bukit Damansara, 50490 Kuala Lumpur