1. ) P. Kalivann A/L Palanivelu v 1. ) Frogger Creation Sdn Bhd (BA-23NCvC-67-12/2024)

P. KALIVANN A/L PALANIVELU

MALA A/P KASINATHAN (NO. K/P: 710131-10-6048) …PLAINTIF-PLAINTIF

FROGGER CREATION SDN BHD (NO. SYARIKAT: 200601012302 [732052-X])

YAP CHEE KONG

YUE KAH LAI

CHEN YIN CHOY (NO. K/P: 700208-10-5547) …DEFENDAN-DEFENDAN 01/08/2025 09:40:35 BA-23NCvC-67-12/2024 Kand. 55

The Plaintiffs were introduced to the First Defendant company through the Fourth Defendant. Following that introduction, the Plaintiffs entered into an agreement with the First Defendant for renovation works to be carried out at their residence. Dissatisfied with the manner and outcome of the said works, the Plaintiffs commenced an action against the First Defendant, its directors, that is, the Second and Third Defendants and the Fourth Defendant.

The present Notices of Application, found in Enclosures 17 and 21, are brought by the Fourth Defendant and the Second and Third Defendants respectively, seeking to strike out the Plaintiffs’ claim against them.

The central issue in both these Notices of Application is whether this is a proper case for the Plaintiffs’ claim to be struck out pursuant to Order 18 rule 19(1) of the Rules of Court 2012.

The respective contentions by the Fourth Defendant in support of his application to strike out the Plaintiff claim and the reply submissions by the Plaintiffs resisting this application were as follows.

The Fourth Defendant contended that the Plaintiffs’ Amended Statement of Claim (in Enclosure 14) discloses no reasonable cause of action against him and is frivolous, vexatious, and an abuse of process. In this regard, he relied principally on paragraphs (a), (b), and/or (d) of Order 18 rule 19(1) of the Rules of Court 2012.

The core of the Fourth Defendant’s case was that his sole involvement was limited to introducing the Plaintiffs to the First Defendant, and that he played no further role in the matters giving rise to the present suit.

On the cause of action of conspiracy, the Fourth Defendant submitted that the Plaintiffs had merely made bare allegations and the pleadings lack particularity.

Relying on the case of Dato’ Shun Leong Kwong v Toh May Fook & Ors [2021] AMEJ 1873; [2021] MLJU 2422; [2021] MLRHU 1860 it was also contended by the Fourth Defendant that where there is an agreement between two or more persons, “the means of carrying out the agreement, whether lawful or unlawful, must be set out”.

The Fourth Defendant further averred that the “purported damages claim does not support the claim of conspiracy”.

On the cause of action of fraud, the Fourth Defendant relied on the case Digora Sdn Bhd v FGV Fertiliser Sdn Bhd [2024] AMEJ 1100; [2024] MLJU 1036; [2024] MLRHU 786 for the proposition that fraud must be specifically pleaded. The Fourth Defendant asserted that the Plaintiffs did not plead any specific acts or conducts other than the conducts of the First Defendant “revolving around the contractual duty of parties under the renovation contract”.

As for the cause of action for breach of contract, the Fourth Defendant’s contention was that the Plaintiffs did not specify any oral and/or written contract between the Plaintiffs and him. Hence, it was argued by the Fourth Defendant that “any pleadings on the alleged breach of contract by the Fourth Defendant “is clearly unfounded and without basis”.

With regards to negligence, the Fourth Defendant submitted that that contention he “allegedly owes a duty of care to the Plaintiffs is misplaced”. Here, the Fourth Defendant relied on Badan Pengurusan Bersama Tropicana Bay Residence @ Penang World City v Mutiara Metropolis Sdn Bhd & Ors [2024] AMEJ 1807; [2024] CLJU 1733; [2024] MLJU 1948 and OSK & Partners Sdn Bhd & Anor v Assets Investment Pte Ltd & Anor [2008] 2 AMR 336; [2008] 2 CLJ 660; [2008] 4 MLJ 914; [2007] 6 MLRH 444 for the proposition that middlemen/introducers/ subcontractors do not owe any duty of care.

Additionally, the Fourth Defendant also cited the Federal Court case of Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 5 AMR 185; [2015] 7 CLJ 1008; [2015] 4 MLJ 734; [2015] 5 MLRA 152 (“Lok Kok Beng”) on the three-fold test of foreseeability, proximity and policy consideration as expounded in Caparo Industries Plc v Dickman & others [1990] 2 AC 605. Based on this three-fold test, it was submitted by the Fourth Defendant that he “does now owe any duty of care to the Plaintiffs and hence, any there could be no breach of the duty of care”.

The Fourth Defendant further submitted that the documentary evidence in the form of Whatsapp messages was insufficient to link the Fourth Defendant’s involvement in the alleged conspiracy or fraud.

In reply to the above contentions, the Plaintiffs submitted that the Fourth Defendant’s application was misconceived and improperly sought to dispose of triable issues summarily.

The Plaintiffs vehemently held on to the argument that the Amended Statement of Claim discloses valid causes of action, including conspiracy, misrepresentation, fraud, breach of contract, and negligence and these matters warrant determination at trial.

On fraud and privity, the Plaintiffs relied on what they consider as established authorities confirming that fraud may be inferred from circumstantial evidence/primary facts: Yee Poh Nyen v Raji Kasan & Ors [2018] AMEJ 0959; [2018] 1 LNS 1185; [2018] 1 MLJU 1108; [2018] MLRAU 293, Dadourian Group International & Ors v Simms & Ors [2009] EWCA Civ 169; and Meeriam Rosaline Edward Paul & Ors v William Singam Raja

211.

The Plaintiff also submitted that the Fourth Defendant’s denial of contractual privity was misconceived, and maintained instead that the Fourth Defendant allegedly played a key role in orchestrating the fraud.

The Plaintiffs refuted the “lack of particulars” ground raised by the Fourth Defendant and argued instead that they have “meticulously pleaded sufficient particulars of fraud and conspiracy in paragraphs 52-61 of the Amended SOC”. The Plaintiffs also drew support from the Federal Court case of Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 2 AMR 795; [2016] 3 CLJ 1; [2016] 3 MLJ 1; [2016] 2 MLRA 263.

On duty of care, the Fourth Defendant’s reliance on Lok Kok Beng was said to be misplaced. The Plaintiffs argued that first, Lok Kok Beng is distinguishable and second, “whether the 4th Defendant acting as the representative and/or or agent and/or middleman of Plaintiffs and 1st to 3rd Defendants itself is a question of law and facts which need to be ventilated and adjudged in a trial and ought not to be determined by way of affidavits”.

Finally, the Plaintiff submitted that the claim is not frivolous, vexatious, or plainly unsustainable. Given the factual conflicts and complex issues, the matter ought to proceed to full trial for proper adjudication. The Decision of this Court on Enclosure 17

This Court acknowledges the utility of Order 18 rule 19(1) of the Rules of Court 2012.

It is well established that, in an appropriate case, the Court must exercise its power to strike out a claim or defence where the impugned pleadings fall within any of the grounds set out in Order 18 rule 19(1)(a), (b), (c) or (d).

Nevertheless, given the summary nature of this jurisdiction, which has the effect of denying a claimant or defendant the opportunity to have the issues or defences ventilated at trial and of bringing the action to an early conclusion, the power to strike out should be exercised only in plain and obvious cases.

In the present instance, the Fourth Defendant has advanced several arguments of considerable force.

However, upon a careful examination of the Plaintiffs’ pleadings and with due regard to the well-settled principles governing this area of practice and procedure, the balance in this case favours a dismissal of Enclosure 17.

This Court is mindful that the Fourth Defendant may ultimately succeed at trial and be vindicated in respect of the arguments raised, as well as in contending that it is unjust to require him to undergo the full rigours of the trial process. Such is, however, the necessary consequence where the threshold for striking out has not been met. In that event, the Fourth Defendant’s remedy lies in an appropriate award of costs at the conclusion of the trial.

Enclosure 17 is dismissed with costs in the cause.

The respective contentions by the Second and Third Defendants in support of their application to strike out the Plaintiff claim and the reply submissions by the Plaintiff resisting this application were as follows.

The Second and Third Defendants submitted that the Plaintiffs’ claim against them is liable to be struck out on several grounds.

First, the Second and Third Defendants contended that the Amended Statement of Claim discloses no reasonable cause of action against them personally. According to the Second and Third Defendants, the underlying contract was entered into between the Plaintiffs and the First Defendant, a company, and any representations or conduct of the Second and Third Defendants were made in their capacity as directors of the First Defendant, which can only act through its officers.

The Second and Third Defendants argued that they did not contract personally with the Plaintiffs nor had they given any personal guarantee.

The Second and Third Defendants further submitted that the Plaintiffs’ allegations of conspiracy, fraud and negligence against them were pleaded in broad and general terms without sufficient particularity, contrary to the requirements under Order 18 rules 7 and 12 of the Rules of Court 2012 and established case law.

Third, the Second and Third Defendants argued that the Plaintiffs had not pleaded any legal basis for piercing the corporate veil of the First Defendant. In the absence of such pleadings, the attempt to impose personal liability on them was said to be unsustainable and an abuse of process.

Finally, the Second and Third Defendants submitted that pursuing the claims against them would cause prejudice, embarrassment, and delay to the fair trial of the action, given that the First Defendant is a separate legal entity and the Second and Third Defendants were acting as its directors.

On these grounds, the Second and Third Defendants submitted that the Plaintiffs’ claims against them ought to be struck out as scandalous, frivolous, vexatious and an abuse of the process of the Court.

In its reply, the Plaintiffs advanced the same arguments as they did against the Fourth Defendant in Enclosure 17, namely that the present application in Enclosure 21 by the Third and Fourth Defendants was misconceived and improperly sought to dispose of triable issues summarily.

The Plaintiffs reaffirmed their pleadings and submitted that the question of whether the Second and Third Defendants had used the First Defendant as the facade and made the representations to the Plaintiff is a question of law and facts which need to be ventilated at trial.

The Plaintiffs argued that they “are entitled to the opportunity to substantiate their claims, just as the Defendants must be afforded the chance to mount their defence”. The Decision of this Court on Enclosure 21

Having perused the cause papers and in particular the Plaintiffs’ pleaded case, this Court is of the considered view that the Second and Third Defendants have failed to satisfy this Court that this is a plain and obvious case warranting striking out.

As in the case with Enclosure 17, while this Court recognises that the Second and Third Defendants may ultimately prevail at trial on the arguments advanced, and that it may be contended that subjecting them to the full trial process is onerous, such considerations do not alter the fact that the stringent threshold for striking out has not been met in this instance. The appropriate recourse, should their defence ultimately succeed, lies in the proper allocation of costs at the conclusion of the trial.

Enclosure 21 is dismissed with costs in the cause. Dated: 1 August, 2025 sgd (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Plaintiffs : Raymond Kok Kai Ren (Messrs W.A. Lau & Partners) For the 1st, 2nd & 3rd Defendants : Mohan a/l M. Sankaran (Messrs Mohan M Sankaran & Associates) For the 4th Defendant : Sandra Tan Xue Qi (Messrs Mak LK & Co.)