1. ) Tan Sooh Moi v LIM Gan Lee (JA-22NCvC-41-03/2021)

KONG SIAN KWEE MENUNTUT SEBAGAI WAKIL SAH BAGI SI MATI BERNAMA KONG HENG HOE …PLAINTIF-PLAINTIF DAN LIM GAN LEE …DEFENDAN GROUNDS OF JUDGMENT [Enclosures 15 & 17] Introduction [1] These are two applications filed by the Defendant to strike out the 1st and 2nd Plaintiffs’ claims pursuant to O. 18 r. 19(a) of the Rules of Court 2012 in Enclosures 15 and 17, respectively. 04/09/2022 08:50:48 JA-22NCvC-41-03/2021 Kand. 54 ___________________________________________________________________________________________ 2 The Defendant’s preliminary objection [2] The Defendant raised a preliminary objection relating to the validity of the 2nd Plaintiff’s affidavit. The Defendant contended that the 2nd Plaintiff filed the affidavit-in-reply on 3.9.2021 (Enclosure 22) by putting his name in paragraph 1 as the deponent of the affidavit. Nonetheless, the 1st Plaintiff’s name was written in the jurat at page 20 of the affidavit. This, according to the Defendant, would render the affidavit to be defective as it contravened O. 41 r. 1(7) of the ROC. [3] I have scrutinised the affidavit in question and find that there is no doubt on the fact raised by the Defendant relating to the affidavit. However, Plaintiffs offered no explanation on why this happened except by quoting O.1A of the ROC that the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with the rules. [4] O. 41 r. 1(7) of the ROC reads –

Every affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn. [5] In the present case, I find that the 2nd Plaintiff’s affidavit-in-reply did not comply with the rule relating to the filing of the affidavit since the affidavit was not signed by him and this gave rise to a confusion on who actually the deponent of the affidavit was. Therefore, I have no doubt to hold that the affidavit is defective and inadmissible. ___________________________________________________________________________________________ 3 [6] Although O. 41 r. 4 of the ROC allows a defective affidavit to be used in evidence, this must be with the leave of the court. Nonetheless, there was no such application made by the Plaintiffs. [7] In Utama Merchant Bank Bhd v. Dato' Mohd Nadzmi bin Mohd Salleh [2001] 2 CLJ 235; [2001] 2 AMR 1687; [2001] 5 MLJ 317, Ramly Ali J (as he then was) held that – [10] It is a general rule that all rules and forms under the RHC must be complied with for the purpose of uniformity and certainty. The powers under O. 2 r. 1 and O. 41 r. 4 are exceptions to the general rule. There must be strong justification why litigants cannot comply with those general rules in order for the court to exercise such powers. A mere omission or oversight on the part of litigants should not be an excuse to invoke those powers. Otherwise the "exception" will become the rule and the purpose of drafting all those rules will be defeated. [8] Likewise in Impuda Trading Sdn Bhd v. Khoo Kiat Piau & Anor [1997] 1 CLJ Supp 158, Augustine Paul (as he then was) decided that a defective affidavit may be allowed to be used only if the Court is satisfied that the affidavit had been sworn before the person who had signed the jurat. [9] In light of above, I agree with the counsel of the Defendant that the 2nd Plaintiff’s affidavit-in-reply is defective and must be rejected as it was clearly not signed by him but by somebody else. Law on striking out of plaintiff’s claim [10] It is trite that that an application to strike out the plaintiff’s claim under O. 18 r. 19(1)(b) and or (c) of the ROC can be succeeded only when the ___________________________________________________________________________________________ 4 claim is on the face of it “obviously unsustainable”. O. 18 r. 19(1) of the ROC states – “Striking out pleadings and endorsements (O. 18, r. 19)

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.”. [11] In Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 1 MLRA 111, the Court of Appeal held that on an application under O. 18 r. 19(1)(a) of the RHC, the court has only to consider whether the statement of claim discloses a reasonable cause of action. The well-established principle is that the court will not summarily strike out pleadings, except only in plain and obvious cases where the claim or counterclaim is plainly and obviously not sustainable. [12] In Bandar Builders Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 4 CLJ 7, Mohamed Dzaiddin bin Hj Abdullah, SCJ (as he then was) held that – ___________________________________________________________________________________________ 5 "The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). 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.”. [13] The Lordship further explained that – “It has been said that so long as the pleadings disclose some cause of action or raise some question fit to be decided by the Judge, the mere fact that the case is weak and not likely to succeed at the trial is no ground for the pleadings to be struck out (Moore v. Lawson [1915] 31 TLR 418 CA); (Wenlock v. Moloney (supra)).”. [14] The issue before the court now is whether or not the Plaintiffs’ claim is plainly and obviously unsustainable. Brief background of the 1st Plaintiff’s claim [15] The 1st Plaintiff alleged that the Defendant had signed a contract with the 1st Plaintiff on 16.9.2014 (“the 1st Contract”) and this contract, ___________________________________________________________________________________________ 6 according to the 1st Plaintiff was witnessed by the 2nd Plaintiff. The alleged contract contained the following terms, inter alia –

the 1st Plaintiff lent a sum of RM100,000.00 as a principal sum to the Defendant as a friendly loan (“the Loan”);

the Defendant charged his rubber estate held under H.S.(M) 867 Lot 6521 Mukim Tanjung Sembrong, District of Batu Pahat (“the 1st Land”) to the 1st Plaintiff;

the Loan was subject to an interest at the rate of 1% calculating from the date of the Loan;

the date of payment started from 16.9.2014 and the term of payment was within one year;

the Defendant shall repay the Loan in twelve-month instalments at RM8,333.33 each month together with interest of RM1,000.00 each month started from 16.9.2014 until 15.9.2015; and

the repayment of the Loan shall complete within a year from 16.9.2014. [16] The 1st Plaintiff alleged that the Defendant failed to repay the Loan on any part or at all since 16.9.2014. The 1st Plaintiff also alleged that the Defendant orally agreed to transfer the 1st Land to the 1st Plaintiff as the repayment of the Loan. ___________________________________________________________________________________________ 7 [17] Due to this, the 1st Plaintiff prays for the following orders against the

a sum of RM112,000.00 as at 16.3.2021 to be repaid to the 1st Plaintiff within seven days from the receipt of the judgment;

interest of 5% on RM112,000.00 from 16.3.2021 until the date of full settlement;

should the Defendant fail to pay the sum of RM112,000.00 to the 1st Plaintiff within the period of seven days from the receipt of the judgment, a declaration that the Defendant be ordered to transfer his half of the undivided share in the 1st Land to the 1st Plaintiff;

the Defendant shall execute and sign Form 14A of the Schedule to the National Land Code to transfer the 1st Land to the 1st Plaintiff within fourteen days after the notice was served to the Defendant and in the event that the Defendant fails to do so after the fourteen-day period expires, the Deputy Registrar or the Senior Assistant Registrar be given the power to sign and complete all applications, plans and documents which are required by the relevant authorities to complete the transfer of all shares of the 1st Land to the 1st Plaintiff;

the Defendant is ordered to pay the legal fees and costs of the action; and

other orders or reliefs which the court thinks fair and fit. ___________________________________________________________________________________________ 8 Brief background of the 2nd Plaintiff’s claim [18] As far as the 2nd Plaintiff’s claim is concerned, the 2nd Plaintiff pleaded that his late father (Kong Heng Hoe) entered a loan contract with the Defendant on 18.5.2012 (“the 2nd Contract”) which contained the following terms, inter alia –

his late father leased his own land held as Lot 8142, EMR 5170 Mukim Tanjung Sembrong, Daerah Batu Pahat (“the 2nd Land”) to the Defendant for a sum of RM70,000.00 (“the Lease Sum”) which had to be paid by the Defendant for a period of five years with effect from 18.5.2012 until 17.5.2017;

the Defendant shall pay RM7,000.00 (10% of the Lease Sum) to the 2nd Plaintiff’s late father on the agreement date and RM63,000.00 before 17.8.2012;

the Defendant shall be liable to pay an interest at the rate of 5% per annum (RM70,000.00 x 5% = RM3,500.00) to the 2nd Plaintiff’s late father every year;

the Defendant shall pay the entire interest (RM3,500.00 x 5 years = RM17,500.00) in five years;

the Defendant orally agreed to transfer the 1st Land to the 2nd Plaintiff’s late father; and

the payment of the Lease Sum with interest shall complete on 17.5.2017. ___________________________________________________________________________________________ 9 [19] The 2nd Plaintiff alleged that the Defendant only paid RM7,000.00 out of the Lease Sum to the 2nd Plaintiff’s late father which was done on 18.5.2012. [20] Due to this, the 2nd Plaintiff prays for the following orders against the

a sum of RM80,500.00 as at 16.3.2021 to be paid to the 2nd Plaintiff as the representative and administrator to the deceased within seven days from the receipt of the judgment;

an interest of 5% on RM80,500.00 from 16.3.2021 until the date of full settlement;

should the Defendant fail to pay the sum of RM80,500.00 to the 2nd Plaintiff within the period of seven days from the receipt of the judgment, a declaration that the Defendant be ordered to transfer his half of the undivided share in the 1st Land to the 2nd Plaintiff;

the Defendant shall execute and sign Form 14A of the Schedule to the National Land Code to transfer the 1st Land to the 2nd Plaintiff within fourteen days after the notice was served to the Defendant and in the event that the Defendant fails to do so after the fourteen-day period expires, the Deputy Registrar or the Senior Assistant Registrar be given the power to sign and complete all applications, plans and documents which are required by the relevant authorities to complete the transfer of all shares of the 1st Land to the 2nd Plaintiff; ___________________________________________________________________________________________ 10

the Defendant is ordered to pay the legal fees and costs of the action; and

other orders or reliefs which the court thinks fair and fit. The Defendant’s arguments [21] The Defendant contended that the 1st and 2nd Plaintiffs’ claims must be struck out on the following grounds:

the 1st Plaintiff’s claim for an amount of RM112,000.00 and the 2nd Plaintiff’s claim for an amount of RM80,500.00 fall within the monetary jurisdiction of the sessions court and the magistrates court, respectively;

the 1st and 2nd Plaintiffs’ claims cannot be joined in one suit as they are based on two different contracts which have no relations to each other;

the alleged loan contracts between the 1st Plaintiff and the Defendant and the 2nd Plaintiff’s late father and the Defendant which are denied by the Defendant are void as they are illegal moneylending agreements; and

the 1st and 2nd Plaintiffs’ claims are barred by limitation. Forum non conveniens [22] On the issue raised by the Defendant that the 1st Plaintiff’s claim falls within the monetary jurisdiction of the sessions court, it is clear that s. 65(1)(b) of the Subordinate Courts Act 1948 provides that the civil jurisdiction of a Sessions Court includes to try all actions and suits where ___________________________________________________________________________________________ 11 the amount in dispute or the value of the subject matter does not exceed one million ringgit. Further, the 2nd Plaintiff’s action should be brought in the magistrates court as the monetary jurisdiction of that court shall not exceed one hundred thousand ringgit as stated in s. 90 of the Act. [23] Notwithstanding the High Court has an unlimited civil jurisdiction to try all matters pursuant to s. 23 of the Court of Judicature Act 1964, I find that the Plaintiffs must adhere to the doctrine of forum non conveniens. [24] In Lee Lai Fatt v. Loh Kum Chong [2021] 1 LNS 1179; [2021] 5 MLRH 387 the Court explained the doctrine of forum non conveniens in details as follows: [29] "Forum conveniens" or also termed as "forum non conveniens" as defined by Black's Law Dictionary, 7th Edn by Bryan A Garner are defined as below: "forum conveniens" means (Latin: "a suitable forum") The court in which an action is most appropriately brought, considering the best interests and convenience of the parties and witnesses. Cf. FORUM NON CONVENIENS. "forum non conveniens" means (Latin: "an unsuitable court") Civil procedure. The doctrine that an appropriate forum - even though competent under the law - may divest itself or jurisdiction if, for the convenience of the litigants and the witnesses, it appears that the action should proceed in another forum in which the action might originally have been brought. Also termed forum inconveniens. [30] ... [31] ... ___________________________________________________________________________________________ 12 [32] In Merriam-Webster Dictionary, "forum non conveniens" is defined as "a doctrine allowing a court with jurisdiction over a case to dismiss it because the convenience of the parties and the interest of justice would be better served if the case were brought in a court having proper jurisdiction in another venue". [25] In Lee Kuang Guat v. Chiang Woei Chien [2021] 3 CLJ 237, the Court of Appeal held that – [6] As a preliminary observation, we find it necessary to state that it is rather curious that the dependency suit was filed in the High Court when it should have been filed in the Sessions Court. No doubt, the High Court has unlimited monetary jurisdiction for all civil actions. However, the defendant ought to have been aware that under s. 65(1) of the Subordinate Courts Act 1948 (Revised 1972) (Act 92) the Sessions Court has "unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents". [26] There was no explanation given by the 1st and 2nd Plaintiffs why they chose to bring these claims in the High Court although they knew that the matter was within the jurisdiction of the sessions and magistrates courts, respectively. The only submission made by the 1st and 2nd Plaintiffs was the High Court has an unlimited jurisdiction to hear the matter albeit the combination of the Plaintiffs claims is less than RM1 million. [27] It is trite that the doctrine of forum non conveniens allows this court to exercise its discretionary power to decline jurisdiction when convenience of the parties and the ends of justice would be better served if action were brought and tried in the designated Courts. It is my considered view that the 1st and 2nd Plaintiffs cannot simply file the claim at any court according to their own convenience without furnishing to the court a cogent and reasonable explanation in doing so. Therefore, there is no doubt that the filing of this suit in the High Court is an abuse of court ___________________________________________________________________________________________ 13 process when the claims clearly fall within the jurisdiction of the sessions and magistrates courts. The joining of the 1st and 2nd Plaintiffs’ claims in one suit [28] On the issue of whether the 1st and 2nd Plaintiffs’ claims can be joined or not, O. 15 r. 4(1) of the ROC reads – Joinder of parties (O. 15, r. 4)

4.

Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where—

if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions. [29] The only reason mounted by the Plaintiffs was their actions and reliefs are against one common party namely the Defendant though they admitted that the contracts were entered separately with the Defendant. By conducting their actions in one suit, the Plaintiffs submitted that this would save costs and court’s time. [30] As alluded to before, in the Statement of Claim, the 1st Plaintiff alleged that the 1st Contract was signed on 16.9.2014 while the 2nd Plaintiff claimed his late father entered the 2nd Contract with the Defendant on 18.5.2012. The terms in both contracts are also different. In the 1st Contract, the 1st Plaintiff lent a sum of money to the Defendant and as the ___________________________________________________________________________________________ 14 security, the latter charged the 1st Land to the 1st Plaintiff. Whereas in the 2nd Contract, the 2nd Plaintiff’s late father leased the 2nd Land to the Defendant for a sum of RM70,000.00 which had to be paid by the Defendant for a period of five years with effect from 18.5.2012 until 17.5.2017. [31] It is clear from O. 15 r. 4(1) of the ROC that the 1st and 2nd Plaintiffs may be joined together as plaintiffs if some common questions of law or fact would arise in all the actions and all rights to reliefs claimed in the action are in respect of or arise out of the same transaction or series of transactions. Nevertheless, the two contracts in question have no connection to each other nor their actions arise out of the same transaction or series of transactions. Although the 2nd Plaintiff alleged that his late father was the witness in the 1st Contract, it does mean that the deceased was privy to the 1st Contract. [32] In the upshot, based on the aforesaid reasons, I find that the 1st and 2nd Plaintiffs failed to convince the court why their claims should be joined in one action. Whether the 1st and 2nd Contracts are moneylending contracts [33] S. 2 of the Moneylenders Act 1951 (“MLA”) defines the words “moneylender”, “moneylending” and “moneylending agreement” as follows: “moneylender” means any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending, whether or not he carries on any other business; ___________________________________________________________________________________________ 15 “moneylending” means the lending of money at interest, with or without security, by a moneylender to a borrower; “moneylending agreement” means an agreement made in writing between a moneylender and a borrower for the repayment, in lump sum or instalments, of money borrowed by the borrower from the moneylender; [33] Further s. 10OA of the MLA provides the presumption of a moneylender as below – Presumption as to the business of moneylending 10OA. Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved. [34] As admitted by the 1st Plaintiff, the main term of the 1st Contract was the 1st Plaintiff lent a sum of RM100,000.00 to the Defendant subject to an interest at the rate of 1% calculating from the date of the Loan. The 1st Plaintiff also admitted that she was not a licensed moneylender. Thus, I find the 1st Contract is clearly an illegal moneylending agreement. [35] Likewise the 2nd Contract, the main term of the 2nd Contract was the 2nd Plaintiff’s late father lent a sum of RM70,000.00 to the Defendant subject to an interest at the rate of 5% per annum calculating from the date of the Loan. The 2nd Plaintiff also admitted that the deceased was not a licensed moneylender then. ___________________________________________________________________________________________ 16 [36] Based on these facts, it is my considered view that both Contracts were illegal moneylending agreements and unenforceable. S. 15 of the MLA states – Contract by unlicensed moneylender unenforceable 15. No moneylending agreement in respect of money lent after the coming into force of this Act by an unlicensed moneylender shall be enforceable. [37] The illegal moneylending transactions made by the 1st Plaintiff and the 2nd Plaintiff’s late father would render the agreements as unlawful by the Contract Act 1950. S. 24 of the Act says – What considerations and objects are lawful, and what not 24. The consideration or object of an agreement is lawful, unless –

it is forbidden by a law;

it is of such a nature that, if permitted, it would defeat any law;

it is fraudulent;

it involves or implies injury to the person or property of another, or

the court regards it as immoral, or opposed to public policy. [38] The 1st and 2nd Plaintiffs cannot seek the assistance from the court for illegal transactions and unlawful agreements. The Federal Court in Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industrialised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21 held that – ___________________________________________________________________________________________ 17 The section therefore enacts in statutory form that a contract that is illegal in itself is void and unenforceable by either party. It is contaminated by turpis causa and that rule has long been established that ex turpis causa oritur non actio - no person can claim any right or remedy whatsoever under an illegal transaction in which he has participated. The Courts do not overlook the fact that they do not assist a person who comes with unclean hands. In the words of Lindley LJ in Scott v. Brown, Doering, McNab & Co. [1892] 2 QB 724, 728. No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the Court is himself implicated in the illegality. [39] In the premise of the foregoing, I find that the 1st and 2nd Contracts are illegal and unenforceable. Whether the 1st and 2nd Plaintiffs’ claims are barred by limitation [40] S. 6 of the Limitation Act 1953 sets the limitation period for bringing actions of contract and tort. The section reads – Limitation of actions of contract and tort and certain other actions 6.

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say -

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award; ___________________________________________________________________________________________ 18

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. [41] In Dato 'Ahmad Johari bin Tun Abdul Razak v. A. Santamil Selvi a/p Alau Malay @ Anna Malay (administratrix of estate of Balasubramaniam a/l Perumal, Deceased) [2020] 7 CLJ 588; [2020] 6 MLJ 133, the Court of Appeal explained in detail on when the cause of action accrues as follows: [63] It is trite that a cause of action arises from the earliest possible moment in time when an action could be brought. This must be appreciated by the courts and parties alike: see our Federal Court decisions in Nasri v. Mesah [1970] 1 LNS 85; [1971] 1 MLJ 32 and in Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 1 CLJ 207; [2014] 2 MLJ 749. [12] In Letang v. Cooper [1965] 1 QB 232, 242-3, Lord Diplock defined a 'cause of action' as "a factual situation the existence of which entitled one person to obtain from the court a remedy against another", which definition was adopted in Hock Hua Bank Bhd v. Leong Yew Chin [1987] CLJ Rep 126; [1987] 1 MLJ 230, where Abdul Hamid Ag LP, as he then was, appended that "there must be a cause of action before a plaintiff can claim a relief in an action". In Government of Malaysia v. Lim Kit Siang [1988] 1 CLJ Rep 63; [1988] 2 MLJ 12, 19, the Supreme Court per Salleh Abbas CJ, expounded that to make up 'a cause of action', first, the plaintiff has a right at law or by statute and secondly, the right has been affected by the act of the defendant: 'A cause of action' is a statement of facts alleging that a plaintiff's right, either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of a defendant in an action. Lord Diplock in Letang v. Cooper [1965] 1 QB 232 at p 242 defined 'a cause of action' to mean 'a factual situation, the existence of which entitles one person to obtain from the court a ___________________________________________________________________________________________ 19 remedy against another person'. In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudiced by the appellant/defendant's act. In Nasri v. Mesah [1970] 1 LNS 85; [1971] 1 MLJ 32, the Federal Court per Gill FJ, as he then was, depicted 'a cause of action' as follows: A "cause of action" is the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact which, if traversed, the plaintiff must prove in order to obtain judgment (per Lord Esher M.R. in Read v. Brown (1888) 22 QBD 128 131). In Reeves v. Butcher (1891) 2 QB 590 511 Lindley L.J. said: (sic ) Gill FJ, then thus enunciated on 'the date of accrual' in the case of a debt: This expression, 'cause of action', has been repeatedly the subject of decision, and it has been held, particularly in Hemp v. Garland LR 4 QB 509 511, decided in 1843, that the cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought. (emphasis added) [42] For the 1st Plaintiff’s claim, it was pleaded in paragraph 9 of the Amended Statement of Claim that the Defendant had defaulted to repay the Loan since 16.9.2014. Thus, I find that the 1st Plaintiff’s cause of action accrued on the date the repayment was due and payable i.e. 16.9.2014. ___________________________________________________________________________________________ 20 The six years period for the 1st Plaintiff to commence her action against the Defendant expired on 15.9.2020. However, the 1st Plaintiff only filed this action on 25.3.2021. [43] In the 2nd Plaintiff’s claim, it was pleaded in paragraph 20 of the Amended Statement of Claim that the Defendant had to repay the instalments starting from 17.5.2013. Thus, the 2nd Plaintiff’s cause of action accrued on the date the repayment was due and payable, to wit,

17.5.2013. The six years period for the 2nd Plaintiff to commence his action against the Defendant expired on 16.5.2019. However, the 2nd Plaintiff only filed this action on 25.3.2021. [44] Based on the above, I agree with the counsel for the Defendant that the 1st and 2nd Plaintiffs’ claims are time-barred. The 2nd Plaintiff’s locus standi [45] S. 59 of the Probate and Administration Act 1959 says – Rights of action of personal representative 59. Subject to any other written law, a personal representative has the same powers to sue in respect of all causes of action that survive the deceased, and may exercise the same power for the recovery of debts due to him at the time of his death as the deceased had when living. [46] Being an executor and administrator of the deceased estate, the 2nd Plaintiff derives his authority from the Grant of Probate. The personal property of the deceased including all rights of action, vests in the 2nd Plaintiff upon obtaining the Grant of Probate. ___________________________________________________________________________________________ 21 [47] The 2nd Plaintiff filed this suit on 25.3.2021 while the Grant of Probate dated 15.4.2021 was only issued by the High Court on 8.7.2021. It means that during the filing of this action, the 2nd Plaintiff was not clothed with the Grant of Probate. [48] In the recent Court of Appeal case of Ho Yoke Keng v. Philip Lau Soo Fook & Another Appeal [2022] 6 CLJ 200; [2022] 1 LNS 603, it was held that – [46] In this regard, we find that there are no special circumstances for plaintiff to commence the action as the beneficiary of the late Yap Chin Moy without the letter of administration to be the legal representative of the estate. Plaintiff, therefore, has no locus standi to commence the said action. The decision by the Federal Court in Deraman 's case and the principle laid down in Al Rashidy case with regard to the issue of locus standi are applicable in the present case and not in favour of the plaintiff. [49] The 2nd Plaintiff relied on Al Rashidy Kassim & Ors v. Rosman Roslan [2007] 3 CLJ 361; [2007] 4 MLJ 297 where the Federal Court allowed the beneficiaries of the deceased person to commence an action to protect and to regain land which has been fraudulently obtained by an outsider without first obtaining the Letters of Administration. This case was discussed in Ho Yoke Keng (supra) where the Court of Appeal had said that – [40] In Al Rashidy 's case, the court observed that the beneficiaries of the estate commenced legal action to regain the land from the respondent who was said to have transferred the land to himself by fraudulent means. The appellant had to act fast to protect and preserve the estate of the deceased and the special circumstances that exist in the case, beside the fraudulent transfer were, the respondent had entered the land and damaged the fruits trees and ___________________________________________________________________________________________ 22 demolished buildings found on the land. Further, and the land is liable to be sold by the respondent to a third party in which the land may be lost forever. [50] In short, it is incumbent to a beneficiary to show to the court that the existence of a special circumstance in which an action has to be commenced immediately and without having vested with the grant of probate or letter of administration, whichever is applicable. However, in our present case there is no special circumstance pleaded or explained by the 2nd Plaintiff on why he still brought this action when he knew that the Grant of Probate had yet to be issued to him. [51] Based on this, I find the 2nd Plaintiff had no locus standi at the moment he filed this action. Conclusion [52] For the foregoing reasons, the 1st and 2nd Plaintiffs’ Amended Statement of Claim is on the face of it obviously unsustainable and the Defendant’s application for the striking out of the 1st and 2nd Plaintiffs’ claims should be allowed. Dated : 3 September 2022 Decision Date : 13 June 2022 - signed - (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, High Court, Johor Bahru ___________________________________________________________________________________________ 23 Counsels: For the Plaintiffs – Ong Wen Li; Messrs. W.L. Ong & Associates For the Defendant - CH Wong; Messrs Bong & Partners Cases referred to: • Abdul Rahim Abdul Hamid & Ors v Perdana Merchant Bankers Bhd & Ors [2000] 1 MLRA 111 • Al Rashidy Kassim & Ors v. Rosman Roslan [2007] 3 CLJ 361; [2007] 4 MLJ 297 • Bandar Builders Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 4 CLJ 7 • Dato 'Ahmad Johari bin Tun Abdul Razak v. A. Santamil Selvi a/p Alau Malay @ Anna Malay (administratrix of estate of Balasubramaniam a/l Perumal, Deceased) [2020] 7 CLJ 588; [2020] 6 MLJ 133 • Ho Yoke Keng v. Philip Lau Soo Fook & Another Appeal [2022] 6 CLJ 200; [2022] 1 LNS 603 • Impuda Trading Sdn Bhd v. Khoo Kiat Piau & Anor [1997] 1 CLJ Supp 158, • Lee Kuang Guat v. Chiang Woei Chien [2021] 3 CLJ 237 • Lee Lai Fatt v. Loh Kum Chong [2021] 1 LNS 1179; [2021] 5 MLRH 387 • Singma Sawmill Co Sdn Bhd v. Asian Holdings (Industrialised Buildings) Sdn Bhd [1979] 1 LNS 96; [1980] 1 MLJ 21 • Utama Merchant Bank Bhd v. Dato' Mohd Nadzmi bin Mohd Salleh [2001] 2 CLJ 235; [2001] 2 AMR 1687; [2001] 5 MLJ 317 Legislations referred to: • Contract Act 1950 – s. • Limitation Act 1953 – s. • Moneylenders Act 1951 – s. 2, 10OA, 15 • Probate and Administration Act 1959 – s. • Rules of Court - O. 15 r. 4(1), O. 18 r. 19(1), O. 41 r. 1(7)