Ong Ching Chee v Ong Kong Beng (BA-22NCvC-5-01/2023)

ONG CHING CHEE

CHONG CHIT ENG

ONG KONG LEONG

ONG KONG KUAN

ONG KONG YEE (NO. K/P: 740118-10-5515) …PLAINTIF-PLAINTIF

ONG KONG BENG

ONG KONG SEONG (NO. K/P: 570404-10-5461) 31/07/2025 17:11:45

JASA KORPORAT SDN BHD

HILLTOP PALMS SDN BHD (NO. SYARIKAT: 1055317-H) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

There are two applications before this Court.

Enclosure 11 is the Fourth Defendant’s application to strike out the Plaintiffs’ Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b), (c) and (d) of the Rules of Court 2012 (ROC 2012), Item 11 of the Schedule to the Courts of Judicature Act, and the inherent jurisdiction of the Court.

Enclosure 13 is the First to Third Defendants’ application to strike out the Plaintiffs’ Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b) and (d) of the ROC 2012, and the inherent jurisdiction of the Court.

Enclosures 11 and 13 were directed solely against the First, Second, and Third Plaintiffs. On 1 April 2024, this Court struck out the claims of the Fourth and Fifth Plaintiffs on the grounds that they were not competent to maintain this action without first obtaining the requisite sanction from the Director General of Insolvency pursuant to section 38(1)(a) of the Insolvency Act 1967.

The Plaintiffs, being contributories of several wound-up companies, initiated this suit seeking, inter alia, payment of outstanding sums and interest allegedly owed under various Sale of Business Agreements, including those related to Pengangkutan Jasa Sdn Bhd, OCC Lorry Transport Sdn Bhd and Elegant Palms Sdn Bhd. They also alleged collusion and conspiracy between the First to Third and the Fourth Defendants to avoid fulfilling their obligations under those agreements.

The Defendants argued, among others, that the Plaintiffs lacked locus standi, that the claims were barred by the doctrine of res judicata, and that they were also time-barred under the Limitation Act 1953.

After hearing submissions and considering the affidavits and authorities filed, I allowed both applications. These are my reasons.

The First Plaintiff operated a small lorry transportation business as a private enterprise.

After completing his education in New Zealand and gaining work experience, the First Defendant incorporated several companies, namely:

Ong Ching Chee Realty Sdn. Bhd.;

Ong Ching Chee Lorry Transport Sdn. Bhd. (OCC Lorry);

Pengangkutan Jasa Sdn. Bhd. (Pengangkutan Jasa);

Chendawan Usaha Sdn. Bhd.;

Ong Ching Chee Capital (M) Sdn. Bhd.; and

Elegant Palm Sdn. Bhd. (Elegant Palm) (collectively referred to as “the said Companies”).

The First Plaintiff is the biological father of the First and Second Defendants and their seven other siblings.

The First Plaintiff was in a relationship with the Second Plaintiff, from which the Fourth and Fifth Plaintiffs were born.

In 2014, the First, Second, Fourth and Fifth Plaintiffs filed winding-up petitions, resulting in the liquidation of the said Companies.

During the liquidation process, the businesses of the said Companies were sold through a tender exercise conducted by the liquidators.

The Third Defendant was successful in the tender and entered into a Sale of Business Agreement dated 13 June 2014 to acquire Pengangkutan Jasa (the Pengangkutan Jasa Agreement), followed by another Sale of Business Agreement dated 23 July 2017 to acquire OCC Lorry (the OCC Lorry Agreement).

In Shah Alam High Court Petition No. 28-433-09/2013 (Petition 433) involving Pengangkutan Jasa, the Fourth Plaintiff obtained an Order dated 13 September 2017 (the High Court 2017 Order) which, among other things, directed the Third Defendant to pay all outstanding sums due under the Pengangkutan Jasa Agreement, together with interest from the date the payment became due.

In this action, the Plaintiffs also claimed against the First to Third Defendants for the alleged outstanding balance of the purchase price, together with interest, arising from the sale of the businesses of Pengangkutan Jasa and OCC Lorry.

The Plaintiffs further alleged that the First to Third Defendants conspired and colluded with the Fourth Defendant to breach the Pengangkutan Jasa Agreement.

The First to Third Defendants argued that the Plaintiffs have no reasonable cause of action against them. They also maintained that the claim is time-barred and amounts to a scandalous, frivolous, and vexatious proceeding, constituting an abuse of the Court’s process.

Consequently, the First to Third Defendants have made an application to this Court to strike out the Plaintiffs’ claim.

The Plaintiffs hold a 20.3% shareholding in Elegant (in liquidation), which was wound up on 9 April 2014.

They sought, among other reliefs, payment from the Fourth Defendant of 20.3% of what they claim to be their entitlement to the remaining purchase consideration for the sale of Elegant’s business, which they asserted was not paid due to an alleged conspiracy (denied by the Fourth Defendant), together with interest.

The Sale of Business Agreement between Elegant and the liquidator of the Fourth Defendant (the Elegant Palms Agreement) was executed on 13 June 2014, with the balance purchase price to be payable on 1 October 2014.

The core of this action rests on the Agreement for the Sale of Business between Elegant and the Fourth Defendant. However, it had already been adjudicated by the High Court on 13 September 2017 in Petition No.28-432-09/2013 (Petition 432).

The Court of Appeal subsequently upheld the High Court’s decision.

It is undisputed that the Fourth Defendant was not named as a party in those proceedings. Both decisions were made without the Fourth Defendant’s knowledge of the proceedings.

The principles of law on striking out of pleadings are trite and well settled. The Court’s power to strike out a claim should be used sparingly. The test for striking out is laid down in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd (1993) 3 MLJ 36, where the Supreme Court held that this summary procedure can only be exercised when it is clearly evident that a claim or answer is plainly and 'obviously unsustainable' on the face of it. The Court must be satisfied that there is no reasonable cause of action, or that the claims are frivolous or vexatious, or that the defences raised are not arguable. This principle has been reaffirmed in numerous cases (see: 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

1 MLJ 473, CA; Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam (2011) 6 MLJ 70, CA). FINDINGS OF THE COURT Locus Standi

The first and crucial issue was whether the Plaintiffs had the legal standing to bring this claim. The Plaintiffs, as contributories holding shares in the said wound-up Companies, aimed to enforce contractual obligations allegedly owed under the Sale of Business Agreements.

However, the evidence showed that the Sale of Business Agreements were executed by the liquidators, not by the Plaintiffs personally.

Since the said Companies are in liquidation, any sums payable under these agreements were payable to the said Companies in liquidation, not directly to the Plaintiffs.

The High Court in Petition 432 explicitly ordered that payments be made to Elegant Palms Sdn Bhd, and further stated that only the company, through its liquidator, could exercise rights under the agreements in the event of default.

The statutory scheme under section 486(1) of the Companies Act 2016 and Part I of the Twelfth Schedule is clear: only the liquidator may initiate or defend legal proceedings in the name and on behalf of the company. Section 486(1) of the Companies Act 2016 states as follows: - “486. Power of liquidator in winding up by Court

Where a company is being wound up by the Court, the liquidator may—

without the authority under paragraph (b), exercise any of the general powers specified in Part I of the Twelfth Schedule; and

with the authority of the Court or the committee of inspection, exercise any of the powers specified in Part II of the Twelfth Schedule.

The exercise by the liquidator in a winding up by the Court of the powers conferred by this section is subject to the control of the Court and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.” Part I of the Twelfth Schedule of the Companies Act 2016 states as follows: - “The liquidator may-

bring or defend any action or other legal proceedings in the name and on behalf of the company;”

Section 486(1) of the Companies Act 2016 and Part I of the Twelfth Schedule grant the liquidator the exclusive authority to initiate or defend any action in the name and on behalf of the company. This position is supported by the following authorities.

In the Court of Appeal case of Leopad Holdings Sdn. Bhd. v

1 CLJ 328, held as follows:- “(1) Once a company is wound up, the property, assets and rights of the company are vested with the liquidator. Only the liquidator has the right to bring an action (subject to the argument on the absolute agreement). A liquidator can grant sanction to a creditor or contributory under s.486 and the Twelfth Schedule of the Companies Act 2016 (‘CA 2016’) to commence or defend an action. …

…once a company is wound up the entire board of directors would cease and become functus officio. The said solitary act of the concerned contributory did not amount to being directly or indirectly involved in the management of the company.”

The Federal Court in Lai King Lung (practising as advocate and solicitor under the name and style of Messrs Chris Lai, Yap & Partners, advocates and solicitors) & Anor v Merais Sdn Bhd [2020] 5 MLJ 614, stated that: “[20] “Similarly, if a company is wound up by an order of court, the board of directors becomes functus officio. The management of the company is vested in the liquidator. Only the liquidator has the power under the 2016 Act to bring or defend any action or other legal proceedings in the name and on behalf of the company. A creditor or contributory cannot commence or continue with any action in the name of the wound up company. Accordingly, if a creditor or contributory of the wound up company wishes to bring or proceed with an action, the creditor or contributory must apply to the liquidator for his sanction to do so. In order to ensure that the defendant is not prejudiced in the event that the wound up company’s action is dismissed, the liquidators usually imposes conditions (such as indemnities and guarantees) which must be satisfied by the creditor or contributory, as the case may be, before the sanction is given.” [emphasis added]

The Court of Appeal in Hup Lee Coachbuilders Holdings Sdn Bhd v. Cycle & Carriage Bintang Bhd [2012] 10 CLJ 88 confirmed that actions on behalf of a wound-up company must either be taken by the liquidator or authorised by court order. Ramly Ali JCA (as His Lordship was then) said: “[15] Section 236(2) of the Companies Act 1965 strengthens the position that only the official assignee as the appointed liquidator has the power to bring or defend any action or other legal proceedings in the name and on behalf of the wound-up company. If for whatever reason, the official assignee as the liquidator is unwilling to initiate the action in the name of the wound-up company, a creditor or a contributory can apply to the court under ss. 236(3) or 279 of the Companies Act 1965 seeking an order that the liquidator be compelled to initiate the action in the name of the wound-up company or that leave be given to the creditor or contributory himself to bring the action in the name of the company. (See: Abric Project Management Sdn Bhd v. Palmshine Plaza Sdn Bhd & Anor [2007] 7 CLJ 516; and Zaitun Marketing Sdn Bhd v. Boustead Eldred Sdn Bhd (supra)). Again, to do so, the creditor or the contributory must have obtained leave of the court before commencing the action in the name and on behalf of the wound-up company.” [emphasis added]

Section 236(3) and 279 of the Companies Act 1965 correspond respectively to sections 486(2) and 517 of the Companies Act 2016.

Here, the Plaintiffs failed to provide any sanction from the liquidator or leave of court. Furthermore, their argument that they were enforcing the High Court 2017 Order was misconceived, as that Order conferred no direct entitlement upon them.

Furthermore, any payments arising from the Sale of Business Agreements would form part of the assets of the winding-up companies to be distributed according to the statutory priority scheme. Allowing the Plaintiffs to enforce these rights individually would enable them to circumvent this statutory order, thus prejudicing other contributories and creditors.

On these grounds alone, this Court finds that the Plaintiffs lacked locus standi. The claim was fundamentally defective and disclosed no reasonable cause of action. If at all, the liquidators of the respective Companies should bring this action. Does the Doctrine of Res Judicata apply?

The Court then considered whether the doctrine of res judicata barred the Plaintiffs’ claim. The subject matter of this case was clearly connected with the earlier proceedings in Petition 433 and Petition 432. Those proceedings involved the exact same Sale of Business Agreements, allegations of breach, and the same outstanding sums.

The High Court 2017 Order originated from the Summons in Chambers filed by the Fourth Plaintiff for the following reliefs:

“Prayer 1 - an order to declare that Jasa Korporat Sdn. Bhd, the purchaser of the respondent’s business and assets is in breach of the agreement for sale of business dated 13 June 2014;

Prayer 2 - that Jasa Korporat Sdn. Bhd. to pay all the outstanding sums due under the said agreement for sale of business within 7 days from the date of the order together with interest of 5% per annum on such outstanding sums for such period as this honourable court deems fair and just;

Prayer 3 - a declaration that pending completion of the said agreement for sale of business, all transactions entered into and all payments received by Jasa Korporat Sdn. Bhd. pursuant to or as a result of the said agreement for sale of business has been done by the said Jasa Korporat Sdn. Bhd. as agent of the respondent;

Prayer 4 - an account by Jasa Korporat Sdn. Bhd. of all payments received by Jasa Korporat Sdn. Bhd. from and since 13 June 2014 less such expenses due directly to the conduct of the business;

Prayer 5 - an order for payment by Jasa Korporat Sdn. Bhd. to the respondent all sums found due upon the taking of account with interest at the rate of 5% per annum;

Prayer 6 – In the event that Jasa Korporat Sdn. Bhd. fails to settle the said outstanding sums in accordance with prayer 2, the agreement for sale of business dated 13 June 2014 shall stand terminated and the payments made forfeited by the respondent; and

Prayer 7 – following prayer 6, all businesses and asset the subject of the agreement for sale of business dated 13 June 2014 shall forthwith be restored by Jasa Korporat

The High Court Judge, in his Grounds of Judgment for the High Court 2017 Order, decided as follows: “[36] I have read the letter dated 25.6.2015 and the proposed settlement agreement dated 15.6.2015 and the global settlement agreement dated 27.2.2015, I find the shareholders and the contributors had consented and authorized the liquidator to deduct and set off the ineptness against their combine shared of the Pengangkutan Jasa distribution. Further they have agreed that they would jointly and severally undertake to pay the difference sum or shortfall in the event their combined share of distribution is less than the said ineptness sum of RM2,4000,000”. [37] Based on the above reasons, I am of the opinion that the sale should go through and the purchaser is given reasonable time to pay the balance of the purchase price, i.e. months from the date when the respondent receive the order falling with the new liquidator has the power under the agreement to sell the company”. [See: pages 11-12 Grounds of Judgment at Exhibit 4(b) Affidavit in Support in Enclosure 14]

Based on the foregoing, the Honourable High Court Judge made the following orders: - “a. Prayer 1 dismissed and for Prayer 2 and 3, the Court made an order that all outstanding sum due under the sale agreement for sale of business be paid within 2 months from the date of receiving the fair order together with interest of 5% per annum from the date of payment due under the agreement; b. Prayer 4 and 5 are allowed. For prayer 6, the Court ordered that in the event the Jasa Korporat Sdn. Bhd. failed to settle the said outstanding sum, the Respondent has the rights to exercise its power provided under the said agreement for sale of business. c. Prayer 7 is allowed with costs of RM10,000.00.”

The High Court Order 2017 was upheld by the Court of Appeal.

This Court agrees with the Defendants’ argument that the Plaintiffs’ claim was an impermissible attempt to reopen matters already decided.

The legal principles were well-established in the case of Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 1 MLRA 611. The Supreme Court held that once a matter is adjudicated by a court of competent jurisdiction, the same parties and their privies cannot relitigate it. Estoppel per rem judicatum arises and prevents not only the reassertion of decided claims but also claims that could have been raised earlier. Peh Swee Chin FCJ stated: [23] What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. [24] Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record… … [29] The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment and such right of action ie. the cause of action, merges into the said final judgment; in layman's language, the cause of action has turned into the said final judgment. The said cause of action may not be re-litigated between the same parties because it is res judicata. In order to prevent multiplicity of actions and also in order to protect the underlying rationales of estoppel per rem judicatum and not to act against them, such estoppel of cause of action has been extended to all other causes of action (based on the same facts or issues) which should have been litigated or asserted in the original earlier action resulting in the final judgment and which were not either deliberately or due to inadvertence. … [35] On the other hand, the issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more ie. that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties. This sounds like explaining a truism, but it is the corollary from that statement that is all important and that could have given birth to the controversies alluded to above; the corollary being that neither of such parties will be allowed to adduce evidence or advance any argument to contradict such decision. In this respect, we respectfully agree with Peter Gibson J in Lawdor v. Gray [1984] 3 All ER 345, 350 who said: “Issue estoppel... prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause of action.” [emphasis added]

Furthermore, the Court of Appeal in the case of Dato’ Sivananthan Shanmugam v Artisan Fokus Sdn Bhd [2015] 2 CLJ 1062 extended the doctrine to include cases where the parties differ but the subject matter and issues are substantially the same, viewing relitigation as an abuse of process. The Court held that: “[25] In the present appeal, since the present action would undoubtedly involve going over precisely the same facts as in the previous HTF suit, and accepting the broader approach and the wider sense of res judicata as the preferred and correct legal position, the fact that the parties to this suit are different from the HTF suit does not disentitle the appellant to invoke the doctrine of issue estoppel to bar the respondent from relitigating a specific issue that had been decided in the prior separate action. The doctrine also applies to a non-party. It is therefore not necessary for parties to be the same in both actions. What the doctrine seeks to prevent is an abuse of the process of the court by attempting to make a double claim as well as allowing the plaintiff to relitigate its cause for the same relief and based on the same subject matter for which judgment had successfully been obtained in the HTF suit and to produce the same set of facts, the same witnesses and the same documents (see Seruan Gemilang Makmur Sdn Bhd v. Badan Perhubungan UMNO Negeri Pahang Darul Makmur, supra ). … [28] Reverting to the instant appeal, what the respondent had done in effect was to divide its case into two separate claims and in the process proceed in two stages in order to suit its convenience while in actuality it was claiming for the same relief based on the same facts for which judgment had already been obtained earlier in the HTF suit. It cannot be denied that both claims arose from the same one and only transaction and were undoubtedly interrelated. Therefore, it would be unjust to permit the respondent to make double claim by filing two separate actions for the same relief. In our judgment the instant action is an abuse of the process of the court.” [emphasis added]

In Seruan Gemilang Makmur Sdn. Bhd. v Badan Perhubungan UMNO Negeri Pahang Darul Makmur (via his secretary Dato' Ahmad Tajudin bin Sulaiman) [2010] 8 MLJ 57, where the Court found as follows: - “…irrespective of whether the second action involved different parties, the doctrine of issue estoppel has been given a wider construction and extended to preclude a party to an earlier action from relitigating in a second action with identical issues of fact, law or mixed fact or law which have been determined against him in the earlier action. He accepted the reasoning of Drake J in North West Water who held that where an issue had for all practical purposes been decided in a court of competent jurisdiction, it would be an abuse of process to allow the issue arising out of identical facts and on the same evidence to be relitigated in separate proceedings between different parties.” [emphasis added]

Similarly, the Plaintiffs’ claim against the Fourth Defendant essentially mirrors the matters already adjudicated in Petition 432, namely the alleged breach of the Agreement for Sale of Business and the High Court 2017 Order.

The Plaintiffs attempted to circumvent this by claiming entitlement to the 5% interest awarded in the High Court 2017 Order. However, the Court finds that the interest, like the principal amount, was awarded to the company, and any enforcement must be carried out by the liquidator. The Plaintiffs’ reliance on the interest component did not establish a new cause of action.

Furthermore, the Court observed that the Plaintiffs’ current pleadings largely duplicated issues previously litigated. This constituted a collateral attack on final orders, contrary to the public policy underlying res judicata – nemo debet bis vexari pro eadem causa.

In Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 AMR 4653, Gopal Sri Ram JCA (as His Lordship was then) held that it is an abuse of court process to initiate proceedings for collateral purposes. “Since the circumstances in which the court's process may be abused are varied and numerous, the categories of such cases are therefore not closed. Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances. Where an action is found to be an abuse of the court's process, it may be struck out or stayed. If it is too late to do this, the party aggrieved may bring an action based upon the tort of abuse of process. This court dealt with the point fairly recently in the context of the tort of abuse of process. It was in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin bin Ungku Mohamed [1998] 2 AMR 1666. I there said (at p 1679): “Every person who is aggrieved by some wrong he considers done him is at liberty to invoke the process of the court. Equally may a litigant invoke the process to enforce some claim which he perceives he has against another. When however, the process of the court is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral purpose, for example, to oppress the defendant, it becomes an abuse of process. Where the court's process is abused, the proceedings complained of may be stayed, or if it is too late to grant a stay, the party injured may bring an action based on the tort of collateral abuse of process.” [emphasis added]

The Court therefore finds that the Plaintiffs' claim was barred by the doctrine of res judicata.

Finally, the Court considers the issue of limitation.

The Plaintiffs’ claim, as set out in their Statement of Claim, was premised upon three Agreements: the Pengangkutan Jasa Agreement, the OCC Lorry Agreement, and the Elegant Palms Agreement. The Pengangkutan Jasa Agreement was executed on 13 June 2014, while the OCC Lorry Agreement and the Elegant Palms Agreement were executed on 23 July 2014 and 13 June 2014, respectively.

According to the Plaintiffs’ pleaded case, the balance purchase consideration under the Pengangkutan Jasa and OCC Lorry Agreements was allegedly payable on 1 March 2015 and 11 October 2014, respectively. Based on these dates, the First to Third Defendants argued that the Plaintiffs’ cause of action accrued on 1 March 2015 for the Pengangkutan Jasa Agreement and on 11 October 2014 for the OCC Lorry Agreement. As a result, the action filed by the Plaintiffs on 6 January 2023 was evidently time-barred, since the six-year limitation period specified under section 6(1) of the Limitation Act 1953 had already expired on 28 February 2021 and 10 October 2020, respectively.

The First to Third Defendants further argued that this position was supported by the findings of the High Court Judge in the 433 Suit, who explicitly acknowledged that the cause of action under the Agreements accrued from the date when payment became due, as reflected in the High Court 2017 Order where interest was ordered to accrue from those due dates.

The Defendants argued that the Plaintiffs’ attempt to change the accrual date to November 2017, which is two months after the High Court 2017 Order, was merely an afterthought and an unlawful attempt to impose a continuing obligation on the Defendants. They maintained that such a position was inconsistent with the clear terms of the Sale of Business Agreements, the Settlement Agreement, and the Global Settlement Agreement.

This Court agrees with the arguments presented by the First to Third Defendants. The Court finds that the cause of action for the Plaintiffs’ claim clearly accrued on the respective due dates specified in the Agreements, namely 1 March 2015 and 11 October 2014. Since the Plaintiffs initiated this action only on 6 January 2023, which is well beyond the six-year limitation period under section 6(1) of the Limitation Act 1953, the Court finds that the Plaintiffs’ claim against the First to Third Defendants is time-barred.

Additionally, the Plaintiffs’ claim against the Fourth Defendant was pleaded based on an alleged breach of contract between the Fourth Defendant and Elegant, as well as a purported breach of the Court Order made in Petition 432.

The Fourth Defendant argued that, even assuming (which was denied) that a contractual obligation existed towards the Plaintiffs from the agreement between the Fourth Defendant and Elegant, the Plaintiffs’ cause of action would have accrued on the date when the balance sum under that agreement became due for payment, specifically 1 October 2014.

Similarly, the Fourth Defendant argued that any alleged tortious damage claimed to have been suffered by the Plaintiffs due to the purported conspiracy (which was also denied) would have, if at all, arisen on the same date, 1 October 2014. Therefore, both the contractual and tortious causes of action, if they existed, accrued on 1 October 2014.

It was further submitted that the Plaintiffs filed the present action only on 6 January 2023, by which time the six-year statutory limitation period under section 6(1) of the Limitation Act 1953 had long expired, the limitation having set in on 2 October 2020. On this basis, the Fourth Defendant argued that the Plaintiffs’ claim was clearly time-barred and should accordingly be struck out as frivolous, vexatious, and an abuse of the court’s process.

This Court agrees with the arguments put forward by the Fourth Defendant. This Court finds that any cause of action against the Fourth Defendant, whether in contract or tort, would have accrued on 1 October 2014. Since the Plaintiffs initiated this action only on 6 January 2023 against the Fourth Defendant, it is clearly beyond the six-year limitation period. The Court accordingly finds that the Plaintiffs’ claim against the Fourth Defendant was statute-barred and should be struck out.

For the reasons stated above, I therefore ordered that the Fourth Defendant’s application in Enclosure 11 and the applications of the First to Third Defendants in Enclosure 13 be allowed. The claims of the First, Second, and Third Plaintiffs against the Fourth and First to Third Defendants, respectively, are struck out with costs of RM6000.00 for each Enclosure. Dated 31 July 2025 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the 1st – 5th Plaintiffs : Michael Chow, Wendy Yeong & Elisa Oyenz Jeson (Messrs Michael Chow) For the 1st-3rd Defendants : Jane Pragasam & Marianne Sonia Paul (Messrs Ho Noecker & Pragasam) For the 4th Defendant : AG Kalidas & Wesley Wong (Messrs K.Nadarajah & Partners)