1. ) the One Minerals Mining Sdn. Bhd. v 1. ) Looi Kam Yong (WA-22NCvC-321-06/2023)

THE ONE MINERALS MINING SDN. BHD.

YAW CHOON KIT (NO. K/P: 841003-08-5641) … PLAINTIF-PLAINTIF

LOOI KAM YONG

CHIN MEI CHING (NO. K/P: 790618-14-5578) … DEFENDAN-DEFENDAN

The Defendants applied to strike out the Plaintiff’s claim under Order 18 Rule 19 of the Rules of Court 2012 (“the Rules”).

Order 18 Rule 19 of the Rules provides that: 09/04/2025 16:28:49

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

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

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. The Plaintiff’s claim

The 1st Plaintiff is a limited liability company incorporated under the Companies act 1965. The 2nd Plaintiff is a director of the 1st Plaintiff since 6/3/2020 and also its shareholder.

The 1st Defendant was the Director of the 1st Plaintiff from 3/8/206 to 27/7/2020 whereas his wife the 2nd Defendant was in charge of the finance department of the 1st Plaintiff whose task included payment of salaries and contributions to SOSCO and EPF.

The Plaintiff’s 1st cause of action against the Defendants is for fraud and misappropriation of a sum of RM 20.03 million which was provided by the 2nd Plaintiff as a capital injection in the 1st plaintiff in consideration of 4000 shares representing 40 % of the share value of the 1st Plaintiff. Of this 40 % share 35% was to be transferred to Yaw Foo Hoe and 5% of share value to the 2nd Plaintiff.

The Plaintiff’s 2nd cause of action against the Defendants is for carrying on in secret a competing business rivalling the business of the 1st Plaintiff whilst still being part of the 1st Plaintiff.

The Plaintiff’s 3rd cause of action is only against the 1st Defendant for breach of fiduciary duties as the Director of the 1st Plaintiff. Cause of action of fraud/misappropriation

The basis of the Plaintiffs’ allegation of fraud and misappropriation against the Defendants is stated in paragraph 5 of the Statement of Claim and for ease of reference the entire paragraph is reproduced here: Pada kesemua masa material, Defendan Pertama telah melakukan frod ("fraud') dan/atau secara tidak jujur menyeleweng ("misappropriated") wang kepunyaan Plaintif Pertama yang berjumlah RM20,003,000.00 yang mana jumlah tersebut adalah sebahagian daripada suntikan kewangan pelaburan milik Plaintif Pertama yang diterima daripada Plaintif Kedua dengan balasan untuk 4,000 unit saham dalam syarikat Plaintif Pertama dipindahkan kepada YAW FOO HOE (No.K/P: 800303-08-5263) yang bersamaan dengan 35% dan Plaintif Kedua yang bersamaan dengan 5% dengan nilai saham Syarikat Plaintif Pertama yang ditentukan sebagai RM10,000.00 bagi setiap unit saham.

In the subsequent paragraph the Plaintiff pleads that the Defendants had used the money given by the 2nd Plaintiff to the 1st Plaintiff to give personal loans to various people at various times.

Even if it could be proven that the Defendants had misused the money given to the 1st Plaintiff, the entity defrauded is only the 1st Plaintiff. The 2nd Plaintiff has no cause of action against the Defendants.

The consideration of the 2nd Plaintiff in injecting the sum of money was already fulfilled by getting the 4000 shares of the 1st Plaintiff.

Even the 1st Plaintiff has no cause of action against the Defendants as there was no agreement between the 1st and 2nd Plaintiff to use the funds for some specific purpose. Such a fact is not pleaded. It is also not pleaded that the giving of personal loan is against the constitution of the 1st Plaintiff.

Apart from material facts not being pleaded the Statement of Claim is also defective for not giving particulars of the of the fraud and misrepresentation perpetrated by the Defendants.

The Court rules that apart from not showing any cause of action material facts have not been pleaded and particulars of the cause of action is not stated and therefore the Plaintiffs claim as contained in the Statement of Claim flouts the rules on the drafting of a

The non-pleading of material facts do not conform with the requirement of Order 18 Rule 7 which stipulates that:

Facts, not evidence, to be pleaded (O. 18 r. 7)

Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.

Where necessary particulars of the cause of action must be given as is provided in Order 18 Rule 12 of the Rules which states as follows:

Particulars of pleading (O. 18 r. 12)

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

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

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies. Competing business

On competing business carried out secretly by the Defendants the Plaintiffs pleaded as follows: Selain itu juga, Defendan Pertama juga telah secara rahsia dan tanpa notis kepada Plaintif-Plaintif serta Pemegang-Pemegang Saham dalam Syarikat Plaintif, telah merangkap/memegang jawatan sebagai Pengarah untuk syarikat lain dan/atau menjalankan perniagaan persendirian yang mana sifatnya adalah saling berkonflik dan bersaing dengan terus ("in direct competition") dengan perniagaan yang dijalankan oleh Plaintif Pertama di sini.

It is obvious from the above material facts and necessary particulars are missing to show what kind of business was carried out by the 1st Defendant that was in “direct competition” with the business carried out by the 1st plaintiff. This again a non-compliance of the Rules. Breach of fiduciary duties

The claim of the breach of fiduciary duties is against the 1st Defendant and again the particulars of fiduciary duties are given in general terms without particularizing each act of the breach of fiduciary duty.

As an illustration paragraph 10 states as follows: Berdasarkan fakta-fakta di atas, Plaintif-Plaintif memplidkan secara spesifik di sini bahawa Defendan Pertama telah memungkiri tanggungjawab fidusiari sebagai Pengarah Plaintif Pertama pada masa material sehingga menyebabkan kerugian kepada Plaintif-Plaintif. Butir-butir dalam aspek ini adalah seperti yang disenaraikan di bawah: BUTIR-BUTIR KEMUNGKIRAN TANGGUNGJAWAB FIDUSIARI DEFENDAN PERTAMA SELAKU PENGARAH PLAINTIF PERTAMA a. Gagal dan/atau enggan dan/atau abai untuk bertindak secara bona fide dan suci hati dalam menjaga kepentingan Plaintif Pertama semasa melaksanakan kesemua kewajipan, kuasa-kuasa, obligasi, tanggungjawab fidusiari yang melekat kepada Defendan Pertama selaku Pengarah dan/atau Pemegang Amanah Plaintif Pertama di sini seperti yang diperuntukkan oleh undang-undang ; Misjoinder of cause of action and parties

In this case the Court notes that unrelated causes of action have been joined in a single claim. There is no nexus between the causes of action. The cause of action of fraud and misappropriation has no relationship to the cause of action of competing business nor any connection with the breach of fiduciary duties of the 1st Defendant.

Similarly there is misjoinder of parties the claim for competing business and breach of fiduciary duty is only against the 1st Defendant and not the 2nd Defendant. Further the claim for competing business and breach of fiduciary duty can only be taken by the 1st Plaintiff which is separate entity from the 2nd Plaintiff.

In short there is no justification in joining all this causes of action nor joining the parties. Order 15 Rule 1 allows for joinder under the following circumstances:

Joinder of causes of action (O. 15 r. 1)

Subject to rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action-

if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all causes of action;

Joinder of parties is allowed as follows:

Joinder of parties (O. 15 r. 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. The law on striking out

The case of Bandar Builder Sdn Bhd v. United Malayan Banking Corporation [1993] 4 CLJ 7 laid down succinctly the law on striking out as follows: “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.

In this case the Court rules that apart from not disclosing a cause of action of fraud and misappropriation, non-particularisation of the cause of action, non-pleading of material facts and the misjoinder of the causes of action and parties will prejudice, embarrass or delay the fair trial of the action. This triggers the provision of Order 18 Rule 19(c) of the Rules empowering the Court to summarily strike out the Plaintiffs’ claim

In the upshot the Court allowed the Defendants application to strike out the Plaintiffs’ claim under Order 18 Rule 19 with a cost of RM30,000. Dated: 7.4.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES Nama Peguamcara: Mohd Fairus; Ramesh Lachmanan; dan Fitrah Ain Binti Idris Tetuan Palany, Fairus & Adib Chambers Suite 1201A, Blok E, Phileo Damansara 1, Seksyen 16, 46350 Petaling Jaya, Selangor. For the Defendant: Nama Peguamcara: Dato' Rabinder Singh; Karamjeet Kaur; dan Chuang Angel Tetuan Rabinder Budiman & Associates Suite 3B-15-5, Level 15, Block 3B, Plaza Sentral, Jln Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur.

Bandar Builder Sdn Bhd v. United Malayan Banking Corporation [1993] 4 CLJ 7.