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1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCC)-271-02/2016
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Court of Appeal of Malaysia25 Oct 2017W-02(IM)(NCC)-271-02/2016
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“(a) The Plaintiffs’ action is time barred by the provisions of section 6 (1) (a) of Limitation Act 1953 (“Limitation Act”); and”
“l as Singapore. [6] NKY suffered from acute dementia and is not able to manage himself and his affairs due to his mental disorder. All the Plaintiffs moved the Court under sections 52 and 58 of the Mental Health Act 2001 (“Act 615”) and obtained the order dated 6th December 2013 appointing them as the Committee of the”
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1 DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. W-02(IM)(NCC)-271-02/2016
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LING TOWI SING @ LING CHOOI SIENG
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IRIS NG TSE MIN (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …PERAYU-PERAYU DAN SINO-AMERICA TOURS CORPORATION PTE. LTD. (No. Syarikat: 197400193H) …RESPONDEN (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang) Writ Saman No. 22NCC-188-06/2015
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Ling Towi Sing @ Ling Chooi Sieng
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Ng Chung San
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Lena Irene Cheng Leng Ng
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Iris Ng Tse Min (Bertindak dalam kapasiti Jawatankuasa Estet Ng Kong Yeam) …Plaintif-Plaintif DAN Sino-America Tours Corporation Pte. Ltd. (No. Syarikat: 197400193H) …Defendan) 2 CORAM: HAMID SULTAN ABU BACKER, JCA PRASAD SANDOSHAM ABRAHAM, JCA ASMABI BINTI MOHAMAD, JCA (Asmabi Binti Mohamad JCA, delivering Judgment of the Court) JUDGMENT OF THE COURT INTRODUCTION [1] This is an appeal from the Kuala Lumpur High Court (NCC) against the decision of the learned Judge of the said High Court dated 18th January 2016 which allowed the Respondent’s application to strike out the Writ dated 29th April 2015 and Statement of Claim dated 28th April 2015 under Order 18 Rule 19 (1) (a) and / or (b) and / or (d) of the Rules of Court 2012 (“RoC”) and / or Order 92 Rule 4 of RoC with costs of RM3,000.00. [2] After having perused the appeal records, the written submissions of the respective parties as well as hearing the oral arguments on the issues raised, we allowed the appeal with no order as to cost. [3] Our reason for doing so now follow. [4] For ease of reference the parties will be referred to as they were described in the High Court. 3 BRIEF BACKGROUND FACTS [5] The 1st Plaintiff is the lawful wife of Dato’ Ng Kong Yeam. The 2nd to 4th Plaintiffs are their children. Dato’ Ng Kong Yeam (“NKY”) was a businessman and a lawyer by profession. NKY has properties and business concerns in Malaysia as well as Singapore. [6] NKY suffered from acute dementia and is not able to manage himself and his affairs due to his mental disorder. All the Plaintiffs moved the Court under sections 52 and 58 of the Mental Health Act 2001 (“Act 615”) and obtained the order dated 6th December 2013 appointing them as the Committee of the Estate of said Dato’ Ng Kong Yeam to manage NKY as well as his affairs (“the Order”) (see page 93 of Appeal Record Bahagian B & Bahagian C). [7] After obtaining the Order, the Plaintiffs, acting as the Committee of the Estate of NKY filed this Suit against the Defendant, Sino America Tours Corporation Pte Ltd to recover the sum of RM5,313,000.00 with interest and costs, being the purchase price of shares of NKY in Pahlawan Sdn Bhd which was sold to the Defendant pursuant to Sale of Shares Agreement dated 16th October 2006. The Plaintiffs claim that the Defendant had not paid the purchase price of the shares to NKY. [8] The Defendant then applied to strike out the Plaintiff’s claim on the following grounds: 4
a
(a) The Plaintiffs’ action is time barred by the provisions of section 6 (1) (a) of Limitation Act 1953 (“Limitation Act”); and
b
(b) There is non-compliance with Order 76 of RoC. The Plaintiffs lack the locus standi to commence the Suit as they are not the litigation representative as required by Order 76 Rule 2
Subsection
(1) of the RoC. AT THE HIGH COURT [9] Before the High Court learned Counsel for the Defendant submitted the following:
a
(a) All the transactions for the purchase of shares in Pahlawan Sdn Bhd, happened sometime in 2006 and 2007, as such the cause of action of the Plaintiffs against the Defendant was more than six (6) years. When the shares were sold, NKY was in full mental health. After full payment had been made in 2007, Form of Transfer of Securities and Certificates of Shares were issued on 15th November 2007 and 18th December 2007 respectively.
b
(b) The Plaintiffs’ Suit was filed on 28th April 2015. Therefore, section 6 (1) (a) of the Limitation Act could be triggered against the Plaintiffs. The date of the Agreement was 16th October 2006 and or the date the Form of Transfer of 5 Securities was executed was on 18th December 2007. The Defendant argued that taking either date, the Plaintiffs would be out of time to commence this Suit against the Defendant. The dateline to file the action would be either sometime in 2012 or latest 2013. As the Plaintiff had filed this action on 29th April 2015, the Plaintiffs were barred from filing this case pursuant to section 6 (a) of the Limitation Act.
c
(c) The Plaintiffs could not file the Suit as the filing is contrary to Order 76 Rule 2 (1) of the RoC. [10] Learned Counsel for the Plaintiffs on the other hand submitted the following:
a
(a) The Defendant had not been specific under which limbs of Order 18 Rule 19 of the RoC, the Application was being moved. The Defendants ought to identify with clarity the limb they were relying on to mount the attack on the Suit.
b
(b) If the Defendant was relying on Order 18 Rule 19 (a) of the RoC then the affidavit evidence ought not to be considered.
c
(c) There is no basis for the Defendant to raise the issue of limitation as the cause of action only began when the order was given on 6th December 2013. 6
d
(d) It is not opened to the Defendant to raise Order 76 Rule 2 (1) of the RoC as the same ought to have been raised when the Order dated 6th December 2013 was made. FINDINGS OF THE LEARNED JUDGE [11] The learned Judge made the following findings:
a
(a) There was non-compliance with the provision of Order 76 Rule 2 (1) of the RoC as the Plaintiffs are not the litigation representatives of NKY as required under this Order. They were merely next friend or guardian ad litem of NKY.
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(b) The limitation period under section 6 1 (a) of the Limitation Act should run from the date the Order was obtained by the Plaintiffs around 2013. The Plaintiffs action was commenced within the limitation period. Hence, the time bar is a non-issue.
c
(c) Although it seemed harsh, the Defendant must not be deprived of the right to raise this argument to strike out the Plaintiffs’ Suit. On the ground that there was noncompliance of the provision of Order 76 Rule 2 (1) of the RoC alone, the Plaintiffs Suit ought to be struck out. 7 OUR DECISION [12] The law on striking out pleadings is trite. There is a plethora of cases on point to guide the court on how to exercise its discretion when faced with cases of this nature. Both learned Counsels for the Plaintiff and the Defendant had highlighted to us the relevant cases applicable to the factual matrix of the case and we have noted the principles enunciated in the cases highlighted to us (see Bandar Builder Sdn. Bhd. & 2 ORS [1998] 4 CLJ 7 ; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 ; Wesma Rubber Products v CIMB Bank Berhad [2014] 6 MLRA 438). [13] As there was no appeal filed by the Defendant with respect to the learned Judge’s decision on the issue of limitation, we consider this issue a non-issue before us. That will leave us only with one issue to consider, whether this matter ought to be struck out because the Plaintiffs herein had not complied with the provision of Order 76 Rule 2 (1) of RoC.
Preamble
Pursuant to this order a person under disability must sue by litigation representative. Order 76 Rule 2 (3) further provides that a litigation representative of a person under disability shall act by a solicitor. [14] There is a specific mechanism provided by the Act 615 for a committee or committee of persons to be appointed by the Court to manage the mentally disordered person who is incapable of managing himself and his affairs due to his mental disorder (Part X, Sections 51 to 75 of the Act 615). 8 [15] In this case, the Plaintiffs had obtained an Order which empowered the Plaintiff to act as the next friend of NKY in legal proceedings to be instituted against such person who may be liable to NKY or his estate and to act as next friend or guardian ad litem of NKY in legal proceedings generally. [16] We now reproduce paragraph 2 of the said Order as follows: “IT IS HEREBY ORDERED that the Applicants’ Application is granted as follows:
a
(a) That the said Dato’ Ng Kong Yeam is found to be of unsound of mind and incapable of managing himself and / or his affairs due to such mental disorder, the abovenamed Applicants are appointed as the Committee of the Estate of the said Dato’ Ng Kong Yeam;
b
(b) That the said Applicants are empowered to manage the asset and estate of the said Dato’ Ng Kong Yeam save that the power granted hereby shall not extend to the sale or charge by way mortgage of such assets or estate or any part thereof or to the letting of any immovable property, unless for a term not exceeding three years, with liberty to apply;
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(c) That the said Applicants are appointed to act as the next friend of the said Dato’ Ng Kong Yeam in legal proceedings to be instituted against such person or persons or company or companies who may be liable to Dato’ Ng Kong Yeam or his estate and to act as the next friend or guardian ad litem of the said Dato’ Ng Kong Yeam in legal proceedings generally.” (emphasis added) 9 [17] From the above, it is crystal clear that the Plaintiffs are empowered by the said Order to institute this case against the Defendants. There is a valid order made by a Court of competent jurisdiction pursuant to an Act of Parliament empowering the Plaintiffs to commence the action for and on behalf of the Estate of NKY. The learned Judge was plainly wrong in making a ruling that the Plaintiffs has no locus to file the case against the Defendant as they are not the litigation representative as envisaged by Order 76 Rule 2 (1) of the RoC but merely a next friend or guardian ad litem appointed by the Court under the Act. [18] We are of the view, the provisions of the substantive law, Act 615, which is an Act of Parliament which permits the Court to appoint the Plaintiffs to be Committee of the Estate of Dato’ NKY and to initiate proceedings for and on behalf of a mentally disordered person who is incapable of managing himself and his affairs due to such mental disorder must prevail over a subsidiary legislation in the form of Order 76 Rule 2
Subsection
(1) of the Rules of Court 2012 which is only procedural law. [19] The Order, unless set aside is a valid and good order and ought to be honoured by the Court. We also find no reason for the Order to be set aside as it was validly and legally made pursuant to the Act 615. [20] We were also guided by the Court of Appeal case of Ziko Abbo v Ketua Polis Daerah Bau, Kuching, Sarawak [2011] 3 CLJ 76 (“Ziko”) where the Court of Appeal observed that Order 76 Rule 2 (1) was not to create obstacles or to cause obstructions as the said Order 76 RoC was 10 intended to give access to justice especially to the person who is not able to manage himself or his affairs in view of his mental disorder. The Court of Appeal went further to rule that the Order “belongs to a species of social legislation which must be construed literally in favour of the patient”. [21] In view of the aforesaid, and in the spirit that Order 76 being “a species of social legislation” as the Court of Appeal in Ziko described it, we found that the learned Judge was plainly wrong in striking out the Plaintiff’s case based on the sole ground that the Plaintiffs were not clothed with the necessary locus to initiate the proceedings due to non-compliance of the provisions of Order 76 Rule 2 (1) of the RoC. CONCLUSION [22] Having examined the appeal record and perused the written submissions and heard the oral arguments, we were constrained to hold that the learned Judge erred in law in striking out the Plaintiff’s suit and upon curial scrutiny merits our appellate intervention. [23] Based on the aforesaid, we unanimously allowed this appeal with costs of RM3,000.00 subject to payment of allocatur fees. The decision of the High Court was set aside and the Suit to be remitted to the High Court for case management. The deposit to be refunded to the Plaintiffs. 11 [24] We therefore ordered accordingly. Dated: 25th October 2017. signed (ASMABI BINTI MOHAMAD) Judge Court of Appeal, Malaysia Parties:
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Messrs Ling & Mok Advocate & Solicitor For and on Behalf of the Appellant 33-12, Q-Sentral 2A Jalan Stesen Sentral 2 KL Sentral 50470 Kuala Lumpur [Ref: 1520008/maz] … Mr HK Ling Mr Mohamad Khairil Abidin
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Messrs Nadzarin Kuok Puthucheary & Tan Advocate & Solicitors For and on Behalf of the Respondent Suite 8.3, Level 8, Menara Pelangi Jalan Kuning, Taman Pelangi 80400 Johor Bahru, Johor [Ref: K&P.2336.5639.16.JP.AMY.mi] … Mr Johanan Puthucheary Cik Azlina Md Yusof
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