Court DecisionMY-HC

WA-22NCvC-629-11/2017

1. ) XXXX v 1. ) Jamilah Binti Sheikh Daud (WA-22NCvC-629-11/2017)

High Court of Malaysia23 Feb 2023

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN MALAYSIA (BAHAGIAN SIVIL)

Guaman No: Wa-22ncvc-629-11/2017

1

ANTARA JANNATH GANI

(india Paspot 5948574)

2

SHAHUL HAMEED

(india Paspot Z 1807843)

3

SHIRIN BINTI MOBARAK AHMAD @AHMAD (NO KP: 550730-05-5406) …PLAINTIF-PLAINTIF DAN 1. JAMILAH BINTI SHEIKH DAUD

(no Kp :460819-05-5198)

2

DR. ABDUL RAHMAN BIN DATUK A.S DAWOOD (NO KP: 531114-05-5257) (di dalam kapasiti beliau sendiri DAN sebagai Pentadbir harta pesaka Patama@ Ammaji Bibi binti Daud Sah melalui Geran Probet bertarikh 4-4-2014)

3

MOHAMED IBRAHIM BIN DATUK A.S DAWOOD

(no Kp: 540827-05-5307)

4

NASEEM BINTI MOHAMED ABDULLA (NO KP:740211-05-5030) 16/03/2023 16:13:24

WA-22NCvC-629-11/2017

Kand. 265

5

PASLA HOLDINGS SDN BHD

(no Syarikat :30886a)

6

AZINAL SDN BHD

(no Syarikat: 108923-D)

7

MADAH PERTAMA SDN BHD

(no Syarikat :340032-U)

8

RASHIDAH BINTI ESA

(no Kp: 570222-01-6628)

9

TASLIM BIN JALAL AHMAD

(no Kp:720419-10-5457)

10

SYAHIN BIN JALAL AHMAD

(no Kp: 760603-10-5955)

11

IKHWAN NASIR BIN ABDUL RAHMAN (NO KP: 881202-05-5337) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 210)

A.

Introduction

1

This is an application from 6th Defendant to strike out Plaintiffs Amended Writ and Amended Statement of Claim in Enclosure 91 and Enclosure 92 respectively under Order18 Rule 19 (1) (b), (c) and/or (d) Rules of Court 2012.

2

After hearing parties on 23-2-2023, this Court is of the view that this is not a plain and obvious case where the powers to strike out the Plaintiffs’ Statement of Claim should be allowed.

3

I have considered the notice of application and the affidavits filed. I have also considered this application together with the application to amend the Statement of Claim filed by the Plaintiff.

4

Having considered the totality of the evidence and arguments before me, as I have allowed to amend the Statement of Claim to add the causes of action that arose from the same facts, this application to strike out should be dismissed. The issues between the litigants ought to be resolved at trial. B. Applicable law

5

The applicable law on striking out a Statement of Claim or any pleading under Order 18 rule 19 of the Rules of Court 2012 is trite and is summarised as follows: -

i

The Court must consider whether an applicant could show that it is a plain and obvious case that recourse should be had to the said process under the above-referred rule and that the claim on the face of the document is “obviously unsustainable”;

II

(ii) A striking out is not a trial on affidavits and the Court should not conduct a minute examination of the documents through the affidavit. As long as there is a valid claim on the face of the pleadings or raises some questions fit to be tried it should not be struck out.

III

(iii) A striking-out order should not be entered if there is an issue of law that requires lengthy argument and mature consideration especially when the issue requires deliberation after taking evidence at trial.

6

I am guided by the decisions of our Superior Courts in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, Sivarasa Rasiah v Che Hamzah Che Ismail [2012] 1 CLJ 75 and Om Cahaya Mineral Asia Bhd v Damansara Realty (Pahang) Sdn Bhd [2018] 5 CLJ 587.

7

I am also guided by the judgment of the Court of Appeal in Sivarasa Rasiah v Che Hamzah Che Ismail (supra) and Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd (supra), that if the pleadings disclose a reasonable cause of action and if it could be shown that there are “issues of law that need to be elaborated and argued in great detail and for mature consideration”, then this Court should not strike out the suit. If there are relevant factual issues that require deliberation of the facts through witnesses, the power under Order 18 rule 19 should not be utilised. C. Reasoning of this Court Not Plain and Obvious – allegation of fraud and breach of trust requires a trial

8

After hearing parties and considered all the submissions filed, I find that this is not a plain and obvious case to be struck out via Order 18 Rule 19 (1) (a), (b), (c) and/or (d) Rules of Court 2012.

9

I believe that there are serious issues to be tried in this case and this issue must be resolved at a trial and should not have been summarily disposed.

10

As I have said earlier, I have considered this application to strike out and the application to amend the Statement of Claim during the same hearing. This is due to the fact that the issues are overlapping and parties did argue extensively on both issues during the same proceedings before me.

11

As I have allowed the application to amend, I find that this is not a plain and obvious case justifying striking out the Statement of Claim. There are issues of fraud and breach of trust raised by the Plaintiff that should be determined at trial. The Defendants will not be prejudiced as they will be allowed to raise all their defences at trial.

Non-appealable

12

It is also important that I highlight the amendment of Section 68 (1) CJA. Pursuant to the said amendment, the decision of this Court concerning the refusal to strike out the claim may be a non-appealable matter as provided below: Non-appealable matters

68

(1) No appeal shall be brought to the Court of Appeal in any of the following cases:

a

when the amount or value of the subject-matter of the claim (exclusive of interest) is less than two hundred and fifty thousand ringgit*, except with the leave of the Court of Appeal;

b

where the judgment or order is made by consent of parties;

c

where the judgment or order relates to costs only which by law are left to the discretion of the Court, except with the leave of the Court of Appeal; and

d

where, by any written law for the time being in force, the judgment or order of the High Court, is expressly declared to be final. e) where a High Court dismissed any application for a summary judgment; f) where a High Court dismissed any application to strike out any writ or pleading; and g) where a High Court allowed any application to set aside a judgment in default.

13

The effect of the above is self-explanatory. D. Orders of this court

14

For the above reasons, I dismiss 6th Defendant’ application with costs in the cause. Dated 23rd February 2023 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 Mr Austen Periera together with David Yii Hee Kiet for the Plaintiffs Messrs. CK Lim Law Chambers Advocates and Solicitors Alex Gan together with Vilasiny G for D1, D3 and D4 Messrs. Vilasiny Gannasen & Co. Advocates and Solicitors Dhayana Sheila for D2, D5, D7 and D11 Messrs. Dhyan & Co. Advocates and Solicitors Pathmanathan together with Shirin Chong Yi Zhen for D6

Messrs. R. Sivagnanam & Associates

Advocates & Solicitors

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Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 23 Feb 2023
Case number: WA-22NCvC-629-11/2017
Coram: YA Dato' Indera Mohd Arief Emran Bin Arifin
Practice area: Amendment Amendment – amended Writ Summon and Statement of claim- fulfill the test required before an application to amend is allowed- Order 20 rule 5 of the Rules of Court 2012 -application to amend is made bona fide or in good faith- will not prejudice the other side which cannot be compensated with costs-the amendment will not turn the suit of one character into a suit of another and inconsistent character- there is no inordinate delay in making the application- Court should not decide on the merits of the claim – Defence argued might fall under doctrine of Res Judicata or the doctrine of Judicial Estoppel-Section 22 (1) of Limitation Act- when the claim as proposed by the Plaintiffs relate to an allegation of fraud as to the assets that the Plaintiffs believe belonged to the estate of the deceased- Plaintiffs’ claim cannot be determined summarily- Application allowed --Costs of the application of RM 10,000.00 to be paid by the Plaintiffs to the Defendants subject to allocator
Version: Alasan Penghakiman 2
Published: 29 Mar 2023
Source ID: 6bd1500e-51c0-4a3b-bc2b-a5ce01c5e62b

Catchwords

Amendment Amendment – amended Writ Summon and Statement of claim- fulfill the test required before an application to amend is allowed- Order 20 rule 5 of the Rules of Court 2012 -application to amend is made bona fide or in good faith- will not prejudice the other side which cannot be compensated with costs-the amendment will not turn the suit of one character into a suit of another and inconsistent character- there is no inordinate delay in making the application- Court should not decide on the merits of the claim – Defence argued might fall under doctrine of Res Judicata or the doctrine of Judicial Estoppel-Section 22 (1) of Limitation Act- when the claim as proposed by the Plaintiffs relate to an allegation of fraud as to the assets that the Plaintiffs believe belonged to the estate of the deceased- Plaintiffs’ claim cannot be determined summarily- Application allowed --Costs of the application of RM 10,000.00 to be paid by the Plaintiffs to the Defendants subject to allocator

Parties

1. ) XXXX - plaintiff - ejudgment_parties
2. ) SHIRIN BINTI MOBARAK AHMAD - plaintiff - ejudgment_parties
1. ) JAMILAH BINTI SHEIKH DAUD - defendant - ejudgment_parties
2. ) DR.ABDUL RAHIMAN BIN DATUK A.S. DAWOOD - defendant - ejudgment_parties
3. ) MOHAMED IBRAHIM BIN DATUK A.S. DAWOOD - defendant - ejudgment_parties
4. ) NASEEM BINTI MOHAMED ABDULLA - defendant - ejudgment_parties

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