3 Two Square Sdn Bhd v Perbadanan Pengurusan 3 Two Square (B-02(IM)(C)-1479-08/2024)

The motion before us concerns a matter that could shed further light and certainty as to the appellate jurisdiction of the Court of Appeal in view of the recent amendment of the Courts of Judicature Act, 1964 (“CJA 1964”) vide the insertion of the new bars against appeals into section 68(1) of the CJA 1964 namely; sections 68(1)(e), (f) and (g) of the Courts of Judicature Act 1964 (“CJA”) (“new Statutory Bars”).

For context, the motion before us does not revolve around the issue of whether or not the new Statutory Bars ought to apply prospectively or retrospectively. This is simply because the civil action at the High Court below was filed on 22.5.2023 WHICH WAS WELL AFTER the new Statutory Bars were put into force on 1.10.2022 (“cut off date”). Thus, not only was the impugned High Court decision for dismissal of Summary Judgment Application was meted out post the enforcement date of the new Statutory Bars, the civil action in and of itself was filed or commenced well after the same date of coming into force.

Instead, the motion before us turns on the question of whether the new Statutory Bars ought to only specifically bar interlocutory applications for Striking Out under Order 18 Rule 19 of the Rules of Court 2012 (“ROC 2012”) or a Summary Judgment under Order 14 of the ROC 2012. Thus, the Motion before us strictly revolves the competency of the Appellant’s Appeal in light of the new Statutory Bars already in force. Therefore, it is not before us to delve into the merits or substance of the parties’ respective cases.

With the proper context of this motion squarely in mind, it is now apt to delve into the underlying facts leading up the motion before us. Succinctly, Perbadanan Pengurusan 3 Two Square (“the Respondent – MC / Respondent”) had on 22.5.2023 filed and commenced a civil suit against 3 Two Square Sdn Bhd (“the Appellant – Developer / Appellant”) seeking inter alia damages arising from cracks occurring within the common property areas (walls, roof, floors, and pillars) of a mixed-development complex known as 3 Two Square (“32Square”).

The Respondent-MC is currently the Management Corporation statutorily incorporated to assume the duties and obligations of a Management Corporation (“MC”) of 32Square after the handover from the Joint Management Body prescribed under the Strata Management Act 2013. The Appellant-Developer res ipsa loquitor was the Developer who constructed and developed 32Square.

In defending against the Respondent’s civil action, the Appellant was of the view that the Respondent’s claim can summarily be totally dismissed (ultimately struck out) via the summary determination of specific questions of law under Order 14A Rule 1 of the ROC 2012 specifically on the following questions of law (“questions of law”): a. Whether the Respondent’s action against the Appellant is time-barred pursuant to Section 6(1)(a), 6A (2), or 6A (3) of the Limitation Act 1953; b. Whether the Respondent’s action against the Appellant is barred by the doctrine of laches in consonance with Section 32 of the Limitation Act 1953; and c. Whether the doctrine of res judicata including the two (2) species of res judicata i.e. cause of action estoppel and issue estoppel, precludes the Respondent’s action from being brought against the Appellant in view of the Decision in Kuala Lumpur High Court Civil Suit No. 22NCvC – 586 – 10/2013 on 22 June 2017; and which, was substantially upheld/affirmed in Court of Appeal Civil Nos. W-02(NCvC)(W) – 1457 – 07/2017& W – 02(NCvC)(W) – 1460 – 07/2-17 on 27 November 2019.

Against which we are beckoned to remark that the grounds on time limitation as well as the application of the doctrine of estoppel and res judicata had also long been grounds to apply for the striking out of a Plaintiff’s claim. Nonetheless, it was clear to us that the Appellant was seeking the same ends of summarily defeating (striking out) of the Respondent’s claim via the summary means of affidavit evidence without having to go for full trial with viva voce evidence.

Apart from the Appellant’s bid for Summary Judgment, the Appellant also alternatively applied for the same questions of law to be put to trial first under Order 33 Rules 2 and 5 of the ROC 2012, if in case the High Court was not minded to enter a Summary Judgment and insisted upon a Full Trial with viva voce evidence.

It is exceedingly pertinent that we highlight the distinct difference and design of a Summary Judgment under Order 14A and a ‘trial within a trial’ under Order 33 Rule 2 of the ROC 2012. A judgment if entered under Order 14A of the ROC would be a SUMMARY JUDGMENT (in that the Court finds that the summary determination of certain questions of law by Affidavits without trial can fully determine a case). On the contrary, an Application under Order 33 of the ROC 2012 is NOT AN APPLICATION FOR SUMMARY DISPOSAL of the case. Instead it is applied for where a party is of the belief that the case can be fully disposed of via a TRIAL OF CERTAIN QUESTIONS PARTLY OF FACT AND PARTLY OF LAW. Thus, since the Appellant here had filed their Notices of Application under both Order 14A and Order 33 rules 2 and 5 of the ROC 2012 (“Appellant’s NOA”), it could only mean that the Appellant is also of the mind (and agrees) that should the High Court find that a Summary Judgment ought not be entered, then the same questions can also be determined via a trial with viva voce evidence.

Upon the exhaustion of affidavits and Hearing Proper of the Appellant’s NOA, the Learned Judicial Commissioner (“LJC”) eventually dismissed the Appellant’s NOA on 30.7.2024, essentially deciding that the Respondent’s claim ought to be determined via a full trial with viva voce evidence.

Dissatisfied with the LJC’s dismissal of the Appellant’s NOA, the Appellant filed the Appeal before us. In view of the new Statutory Bars already in place even before the filing or commencement of the civil suit, the Appellant accordingly filed the subject motion before us under section 68(1)(f) of the CJA (“Enclosure 20 / Respondent’s Motion”) essentially impugning the very competency of the Appellant’s Appeal against the LJC’s dismissal of the Appellant’s NOA for Summary Judgment. For ease of reference, we reproduce the said provision below: "Section 68 Non-appealable matters

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

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:

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

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

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;

where a High Court dismissed any application for a summary judgment;

where a High Court dismissed any application to strike out any writ or pleading; and

where a High Court allowed any application to set aside a judgment in default." C. WHETHER OR NOT THERE IS MERIT IN THE RESPONDENT’S MOTION UNDER ENCLOSURE 20 TO STRIKE OUT THE APPELLANT’S APPEAL [12] At the material time of which we meted our decision after the proper Hearing of the Respondent’s Enclosure 20 on 27.5.2025, there was very limited literature as to the interpretation and ultimately the effect of which the new Statutory Bars carry upon the existing legal framework of Appeals filed before the Court of Appeal. At the time of rendering this decision, there were two Court of Appeal decisions of note being Azinal Sdn Bhd v Jannath Gani & Ors and other appeals [2024] 2 MLJ 526 (“Azinal”) which was decided on 2.2.2024 and MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd [2025] 2 MLJ 341 (MT Ventures COA”) which was decided on 11.7.2024. Both of these decisions were in consonance primarily on the temporal manner in which the new Statutory Bars ought to be enforced (whether it be prospective or retrospective): a. In Azinal, the Court of Appeal dealt with a Preliminary Objection raised to impugn the competency of an Appeal which was filed against the dismissal of a Striking Out Application under Order 18 Rule 19 of the ROC 2012. The Court of Appeal in allowing the Preliminary Objection had decided so on these grounds: i. The Court ought to follow a purposive approach in interpreting the new Statutory Bars so as to identify the mischief that the amendment was seeking to remedy. In analysing the Minister’s speech in the Parliament’s Hansard of 25.7.2022, it was apparent that the purpose that the amendment was intended to serve was to remedy (and curb) the specific mischief (being the Court of Appeal being overladen, backlogged, and inundated with thousands of interlocutory Appeals (and abuse of interlocutory procedures to protract and delay litigation) of which parties are not prejudiced and can still have their day in Court and their ‘broad right of Appeal’ after the High Court had rendered its decision after a Full Trial; “[24] To our minds, the appellant’s interpretation of the amendment act (leading to the prospective effect of the amendment) would grossly undermine, defeat, and flout the very purposes and objectives that the amendment was seeking to achieve. Those main purposes and objectives being: a) to curtail the abuse of interlocutory appeals as a tactic to unnecessarily protract litigation, exhaust counter-parties, and to unnecessarily delay or withhold the case from being properly tried before the High Court; b) to promote speedy and expeditious determination of suits at trial (without being protracted by unnecessary interlocutory appeals); and c) to gradually alleviate the backlog in the Court of Appeal and to avoid the undesirable situation of the Court of Appeal being further overladen and inundated with further filings of interlocutory appeals after the cut-off date of 1 October 2022. [26] In fact, the Minister’s speech had already addressed the supposed ‘prejudice’ against the appellant’s ‘right of appeal’ (argued by the appellant) by clearly demarcating and distinguishing the broad right of appeal to appeal against a decision upon merits by the High Court, and the specific right to an interlocutory appeal. The Minister explained that the removal of a right to an interlocutory appeal DOES NOT prejudice or vitiate a litigant’s broad right of appeal. The Minister further explained that such removal shall not affect the litigant’s right to be heard at full trial and the litigant would still attain the right to appeal against that decision after full trial” ii. Following the purposive approach of statutory interpretation, the new amendments can only be effective in its purpose to remedy the mischief only if the new amendments were to apply retrospectively (in that the new Statutory Bars would apply against any interlocutory Appeal that was filed after the cut-off date (being 1.10.2022) notwithstanding if the suit was filed before the cut-off date. Thus, the new amendments ought to be retrospectively applied and tested against the DATE THAT THE INTERLOCUTORY APPEAL WAS FILED and NOT THE DATE OF COMMENCEMENT OF THE SUIT; iii. Even if the new amendments were to be applied prospectively, the new amendments had specifically prescribed the prospective point of time of which the new Statutory Bars shall be prospectively applied. That prospective point of time being the DATE THAT THE INTERLOCUTORY APPLICATION WAS DISMISSED (FOR STRIKING OUT OR SUMMARY JUDGMENT) OR ALLOWED (FOR SETTING ASIDE JUDGMENT IN DEFAULT). Thus, even if the new amendments were to be applied prospectively, it shall be applied and tested against the DATE OF THE INTERLOCUTORY DECISION and NOT THE DATE OF COMMMENCEMENT OF THE SUIT: [35] Even assuming that we are wrong in the retrospective operation of the amendments, a literal and prospective application of the same amendments would still veer in favour of the respondent’s preliminary objection. This can be explained in the following manner: a) the broad right to appeal is certainly a substantive right. It is a right that is vested upon the parties at the commencement of any given suit; b) but the broad right to appeal (although substantive) is also not meant to be an absolute or blanket right. It is qualified and curtailed by the statutory operation of s 68 of the same vesting Act (CJA 1964); c) distinction must be drawn between a broad right to appeal in an action (‘broad right to appeal’), and an interlocutory right to appeal against an interlocutory application; d) any substantive amendment to deprive any party’s broad right to appeal indeed would affect a party’s rights to be heard and to defend against an action, as they are deprived of ventilating against the High Court’s decision AFTER they already exhausted their day in court. On the contrary, a substantive amendment that would remove a party’s specific right to an interlocutory appeal against the dismissal of a striking out application would not curtail a party’s right to be heard or defend against an action as that party would still have their day in court for trial; e) the language of the amendment to restrict the right to appeal against a decision (in an interlocutory striking out application) was specifically and literally referring to the SPECIFIC TIME ‘where a High Court DISMISSED any application to strike out any writ or pleading'; f) therefore, the prospective application of the amendments shall be examined and applied against the DATE OF THE DECISION and NOT against the date of the commencement of the suit; g) thus, even a prospective application of the amendment would literally mean to affect all decision dismissing a striking out application meted out AFTER the amendment came into force; and h) therefore, since the learned judge had only dismissed the appellant’s striking out application AFTER the amendment came into force, the amendment would have already been in force to restrain or curtail any appeals to be filed against this interlocutory decision.” b. In MT Ventures, the Court of Appeal also undertook a purposive approach into interpreting the new amendments although with specific reference and modification to the ‘Macnaghten test’ as applied by the Federal Court in Lim Phin Khian v Kho Su Ming [1996] 1 MLJ 1. i. The Court of Appeal in MT Ventures was of the considered view that the Parliament had intended to steer the Malaysian position away from the position in the Macnaghten test which holds that the determination of a litigant’s right of appeal must be tested against the time of which the suit was initially commenced or filed and not the time against the date the Appeal was filed or served. In a similar tenor to the earlier decision in Azinal, the Court of Appeal also concluded that the literal wording of the new amendments in and of itself had specifically prescribed the prospective time in which prospective appeals shall be tested against (BEING THE DATE IN WHICH THE HIGH COURT DECISION WAS METED OUT) and not the date the suit was initially filed: “[44] As can be ascertained from the Hansard, the intention of Parliament in enacting the amendment law is to ensure that the Court of Appeal is not overwhelmed with interlocutory appeals and that only cases with merit will be heard in the Court of Appeal, making the administration of justice more effective and saving time and costs for all parties involved without compromising the fairness and rights of any party. The rights of parties are maintained in the trial itself. [45] …The key aspect of the amended s 68(1)(f) is that the decision must be made by the learned judge after the amendment takes effect, ensuring that the Court of Appeal is not overwhelmed with interlocutory appeals. As such, we are of the considered opinion that Parliament had intended to modify the Macnaghten test, and that the cut-off date for the appeals that falls within s 68(1)(f) of the CJA 1964 IS BASED ON THE DECISION DATE, NOT THE INITIATION OF PROCEEDINGS, that is the filing date of the suits. … [57] Applying the above principle that was approved by our Federal Court in Westcourt Corp’s case and giving s 68(1)(f) of the CJA 1964 its plain and obvious meaning would mean that usage of past tense of the word ‘dismissed’ in the said provision is intended to apply to decisions where the High Court judge had dismissed any application to strike out any writ or pleading, whether the writ was filed before or after the amendment to s 68(1)(f) of the CJA takes effect. Therefore, whether the writ was filed before or after the amendment is not important, as the crux of the matter is whether the High Court judge has made a decision to dismiss the application after the implementation of s 68(1)(f) of the CJA 1964.” ii. The Court of Appeal also similarly held that the new Statutory Bars do not at all affect or erase any litigant’s right to appeal and to be heard as parties remain protected and guaranteed a right to Appeal against the substantive trial of the suit: “[43] Therefore the Amending Act, which was to provide for limits on appeals for interlocutory civil cases does not eliminate the rights of parties to appeal and be heard. The parties will still be heard on the substantive case.” [13] In any case, the instant motion before us does not involve the disputation as to the manner in which the new Statutory Bars should be retrospectively or prospectively applied as the core civil suit here was filed well after the new amendments came into force. Thus, even if we were to depart from Azinal or MT Ventures COA, the position of the Appeal before us remains unchanged, in that the new amendments remain applicable (although we certainly do not find any justifiable reason for such departure). And realizing this immovable truth, the Appellant clearly was attempting to ‘pivot’ their Appeal by opting to apply for a Summary Judgement under Order 14A instead of pursuing the typical provision to summarily strike out a suit on the grounds of time limitation and res judicata or estoppel. In fact, in a further attempt to ‘escape’ the literal label of “Summary Judgment” or “striking out” which would have been caught by the Statutory Bars under Section 68(1)(e) or (f) of the CJA 1964, the Appellant filed their Notice of Application under Order 14A under the ‘guise’ of a summary determination on the question of law. Although the inescapable fact remains that an Application under Order 14A throughout Malaysian legal history had still fallen within the specie of a Summary Judgment as well as a striking out Application. [14] It is expected that the inception of the new Statutory Bars shall inevitably spawn many attempts at legal acrobatics for would-be Appellants to escape the statutory prohibition. As time passes on we are sure that there shall be many more legal acrobatics in which litigants would employ to obscure and obfuscate the simple and plain purpose of the new Statutory Bars were put in place. And the Appeal before us was undoubtedly an attempt at escaping the new amendments by way of semantics and syntax. It clearly gleaned from the Appellant’s framing of its Order 14A Application that the Appellant’s ultimate intention was to strike out the Respondent’s claim by summary means (without Full Trial). But the Appellant attempted to conceal its true intent behind Order 14A as the provision neither uses the literal descriptor of ‘striking out’ nor ‘summary judgment. Nevertheless, to the Appellant’s disadvantage and folly, an Application under Order 14A of the ROC 2012 HAD BEEN DESCRIBED AS BOTH A SUMMARY JUDGMENT AND A STRIKING OUT APPLICATION in the precedents below: a. Order 14A as means of Summary Judgment: The Federal Court in Busing ak Jali & Ors v Kerajaan Negeri Sarawak & Anor and other appeals [2022] 2 MLJ 273 had referred to an Application under Order 14A as an Application for Summary Judgment. The Court of Appeal very recently in Tuanku Nur Zahirah v Clare Louise Brown & Ors [2024] 3 MLJ 735 had referred to a judgment entered under Order 14A of the ROC 2012 as a Summary Judgment. Much earlier, the Federal Court in TRIUMPHAL ENTERPRISES SDN BHD v GAN HEAH SIEW [1981] 2 MLJ 79 had likened our local Order 14A provision with the English Order 14A of the Rules of the Supreme Court 1957 which provides for Summary Judgment in the English Statute law; b. Order 14A as means of Striking Out: The Court of Appeal in JAKS Resources Bhd v Star Media Group Bhd and other appeals [2023] 6 MLJ 114 very recently dealt with an Application under Order 14A that was wielded as an Application to strike out the Plaintiff’s claim. Against which the Court of Appeal had proceeded to examine the propriety of the Application without any admonishment as to the Applicant’s reliance on Order 14A as means of striking out. In fact, very recently the Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd and other appeals [2024] 5 MLJ 897 had affirmed the concurrent decisions of the Court of Appeal as well as the High Court for striking out the Plaintiff’s claim under Order 14A (which was actually filed in correspondence and opposition of an Order 14 Summary Judgment Application by the Plaintiff). [15] The above precedents considered, it was plain and obvious to see that the Appellant’s Appeal here would be caught with the statutory bar on both ends of the interlocutory application being a Summary Judgment Application and also a Striking Out Application. Notwithstanding to which side of the fence the Appellant might attempt to flip the script, the indubitable conclusion remains that the Appellant’s Appeal here was incompetent and prohibited by the new Statutory Bars. [16] This is especially so considering the fact that the express semantics and syntax of the new Statutory Bars were intentionally left broad and open to the general descriptors of “Summary Judgment" and “striking out Application” WITHOUT ANY SPECIFIC REFERENCE OR QUALIFICATION OF ANY SPECIFIC LIMB OF THE ROC 2012. This we believe is in line with the existing framework of the law in which the ultimate end of striking out a case or summary disposal of a case can be interlocutorily applied for under the banner of different and interchangeable provisions of the ROC 2012. As the precedents above had already shown, despite the fact that the semantical and syntactical structure of Order 14A does not explicitly refer to ‘striking out’ or ‘summary judgment’, it is well settled and accepted that a summary disposal of a case on the point of law can be both applied for as means for Summary Judgment by a Plaintiff, and for striking out by a Defendant. Therefore, it does not lie against the Appellant here to insist that its Order 14A Application was not in the same species of a Striking Out Application or a Summary Judgment. [17] The duality of nature of an Order 14A Application had also been remarked by the learned authors of the White Book (Malaysian Civil Procedure 2013) at 14A/1/2 Effect of rule: “Order 14A allows an early and expeditious disposal of any cause or matter based on a question of law or construction of any document arising in the cause or matter and thereby saves the expense and delay which would arise in full trial. EITHER PARTIES in a cause or matter may make an application under Order 14A…” [18] Even if we were to further follow the precedents’ purposive interpretation of the new Statutory Bars, the factum remains unmoved that the summary and determinative (or final) nature of an Order 14A judgment shall fall within the ‘specie’ of interlocutory matter that falls within the prohibitory ambit of the new Statutory Bars. The new amendments effectively prohibit interlocutory Appeals against decisions i) dismissing Summary Judgment Applications, ii) dismissing Striking Out Applications, and iii) allowing setting aside of Judgment in Default. It is exceedingly obvious that all three manner of judgments here share the same commonality in that the High Court dismisses an Application for a summary determination of a case without trial and thereby was of the view that the case ought to proceed beyond the Applicant’s attempt at summary disposal of the case. The Court would typically dismiss a Striking Out Application when the case at hand was not plain and obvious and would require a full trial for a proper determination of the case. The Court would typically dismiss a Summary Judgment Application if triable issues arise within the case at hand that would similarly necessitate further evidence and testimony beyond mere affidavit depositions and exhibits. And in a similar tenor, the Court would typically allow a Judgment in Default to be struck out in the instance that the Defendant successfully proves that he may have a defence (that should be appropriately examined further beyond the interlocutory point in time when the Statement of Claim was successfully served unto the Defendant). [19] Thus, it is abundantly clear that the new Statutory Bars were purposefully designed to promote expediency and to avoid undue interlocutory delays when there were grounds to necessitate a given case to proceed and run its due course into a Full Trial. Notwithstanding the fact that an Order 14A Application might not expressly be referred to as a Summary Judgment or Striking Out Application, the very nature of a summary disposal of a case on the point of law or construction of a document that could lead to the dismissal of a case is inherently similar to that of a Striking Out Application under Order 18 Rule 19 of the ROC 2012 and a Summary Judgment Application under Order 14 of the ROC 2012. Therefore, when the High Court proceeded to dismiss the Appellant’s Order 14A Application, the High Court was naturally of the mind that the case would require further exploration and examination leading up to a Full trial. It shall then necessary follow that the new Statutory Bars would similarly set in to set the case’s course to expedite the Case to set for Full Trial (rather than the case to be protracted by a deluge of interlocutory Appeals perhaps up to the Federal Court). [20] Considering all of the above deliberations and findings, we hereby find that the new Statutory Bars (specifically Section 68(1)(e) and (f) of the CJA 1964) applies and therefore rendering the entirety of the Appellant’s Appeal incompetent and should be struck out. D. OBITER DICTA ON THE LATEST FEDERAL COURT DECISION IN MT VENTURES SDN BHD & ANOR V QM PRINT SDN BHD AND ANOTHER APPEAL [2025] 6 MLJ 471 [21] As we have mentioned prior, there was yet a Federal Court (“FC”) decision deciding on the implementation and interpretation of the new amendment at the material time when Enclosure 20 was decided. Thus, logically neither the parties had submitted, nor the panel had anticipated the very recent FC decision in MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd and another appeal [2025] 6 MLJ 471 (“MT Ventures FC”). We are aware that MT Ventures FC was a FC Decision after hearing both the FC Appeals in the case of Azinal and MT Ventures COA. The FC in MT Ventures FC had reversed both the Court of Appeals decisions in Azinal and MT Ventures COA. Though we must strictly be minded that the position in MT Ventures FC was not yet the prevailing position at the time we heard and mete out our decision in allowing Enclosure 20. Thus, as a matter of chronological legalistic accuracy and correctness, our decision here shall not be bound the position in MT Ventures FC which was decided only AFTER WE HAVE ALREADY DECIDED AND ALLOWED ENCLOSURE 20. We might have had been bound by stare decisis if we have not yet rendered our decision to allow Enclosure 20. Nonetheless, the factum remains that our decision to allow Enclosure 20 had firmly been decided BEFORE the FC decision in MT Ventures FC was penned down. [22] Nevertheless, we are of the opinion that even if the decision on MT Ventures FC were to apply in the Appeal before us, the Appellant’s Appeal remains incompetent as the Appellant’s civil suit in and of itself was filed AFTER the new amendments came into force. Thus, the Appellant cannot argue that it had been ‘deprived’ off of a right to Appeal as its rights as a litigant had already been subjected to the new Statutory Bars at the earliest time the Appellant’s civil suit was filed. [23] Succinctly, the FC in MT Ventures FC had reversed the Court of Appeal decisions on the following analyses and grounds: a. The new Statutory Bars are not absolute and do not ‘reinvent the wheel’. Instead it was further clarifying the already existing legal framework of ‘Appealable decision’ and ‘Non – Appealable rulings’ already prescribed under Section 3 of the CJA 1964; b. The new Statutory Bars re-emphasises the specie of ‘rulings’ that are ‘non-appealable’ (as described in the proviso of Section 3 of CJA 1964) – being ‘ruling’ that ‘does not finally dispose the rights of the parties. Thus, the FIRST QUALIFICATION for the new Statutory Bars to apply is that the High Court’s decision must not deal in matters that were in the nature that can finally dispose the parties’ rights: “[67] Progressing from the decisions in both Kempadang and Asia Pacific, it follows that s 3 of the CJA, in like manner, ought to be taken into consideration and applied when construing s 68(1)(f) of the CJA. Our reasons for so concluding are as follows:

however, s 67 of the CJA cannot be construed without reading into it, s 3 of the CJA. And in this context s 3 of the CJA (as held in Kempadang and Asia Pacific) delimits the types of appeals that can be brought. It precludes rulings made in the course of a trial or hearing which do not finally dispose of the rights of the parties. Conversely, where a court has made an order in the course of a trial or hearing which does finally dispose of the rights of the parties, it is appealable;

if s 68(1)(f) of the CJA is to be construed in conjunction with s 67 of the CJA and s 3 of the CJA, it then follows that s 68(1)(f) of the CJA should be read to take into consideration s 67 of the CJA as well as s 3 of the CJA, which precludes any appeal from an order which does not finally dispose of the rights of the parties;

s 68(1)(f) of the CJA would also have to be interpreted in consonance with ss 67 and 3 of the CJA where an order does finally dispose of the rights of parties. This in turn means that orders for the striking out of a writ or pleading which do finally dispose of the rights of parties would not be a ‘ruling’ under s 3 of the CJA; …

s 68(1)(f) of the CJA does not come into play where the striking out of a writ or pleading finally disposes of the parties’ rights;

if s 68(1)(f) of the CJA is so read, it follows that it cannot be construed to be applicable in toto to all dismissals of applications to strike out a writ or pleading; and

in other words, s 68(1)(f) of the CJA cannot be construed in vacuo and literally so as to warrant a reading that all dismissals of applications to strike out a writ or pleading are unappealable.” c. The SECOND QUALIFICATION for the new Statutory Bars to apply is that the High Court’s decision to dismiss the Summary Judgment or Striking Out Application must not be ‘grounded upon’ the necessity of a Full trial with viva voce evidence (or that the issue in dispute is in the nature that does not ‘benefit’ from full trial’): “[166] This is evident for instance where the threshold requirements for a derivative action are not met and the court nonetheless does not strike it out, determining that a full hearing of the dispute on the merits is necessary. If an appeal against the dismissal of such a striking out application is not allowed premised on a literal reading of s 68(1)(f) of the CJA, then this in turn would result in a trial which in no way assists the court in adjudicating upon the threshold requirements or merits of the derivative action. The oral evidence would not assist in determining whether the preliminary point of the threshold requirement for bringing a derivative action has been met. In such an instance, the hearing would prolong rather than expedite the disposal of the matter. … [169] The foregoing exceptions are to be contrasted with striking out applications which are dismissed due to a need for further evidence. If a striking out is dismissed because there are matters that can only be resolved by way of viva voce evidence, there is no right of appeal. Even if the claim may eventually fail, it is not unmaintainable so as to give rise to a right not to be tried.” d. The FC was not agreeable with the Court of Appeal’s position that the new amendments effectively had ‘modified’ the Malaysian position to depart from the Macnaghten test or rule. Thus, the material time to factor into consideration is not the time the High Court had rendered its decision, but instead the time in which the suit was initially filed. Thus, the new Statutory Bars shall only apply as against cases which were filed after the new amendments came into force. The new Statutory Bar does not apply against a High Court decision even if that decision was rendered after the new amendments came into force in the civil suit was filed before the new amendments came into force. [24] Although we can certainly appreciate the Federal Court’s attempt at reconciling (or retrofitting) the new amendment with the historical framework of Section 3 of the CJA 1964, we are beckoned to at least express our dicta on the inescapable fact that the FC’s retrofitting of the new amendment to YIELD THE AMENDMENT back into the existing framework (instead of YIELDING THE EXISTING FRAMEWOK into the amendment) effectively rendered the new amendments to become a toothless tiger. [25] The distinction between appealable ‘decisions that finally disposes of parties’ rights’ and non-appealable rulings that do not finally dispose of parties’ rights’ had been a decades’ old established statutory framework. To yield the amendment back into the existing framework would inevitably lead to the unfortunate conclusion that the parliament had legislated in vain. [26] In fact, the net effect of the FC’s decision would not only negate the core intention of the amendment of easing and trimming the backlog of Appeals lodged in the Court of Appeal, it would instead further promote the proliferation of interlocutory Motions for striking out Appeals as Appellants and Respondents alike now have a new subjective ‘threshold’ to manipulate either to maintain the life of an Appeal, or to end the life of an Appeal in limine as parties would employ legalistic acrobatics to prove (or disprove) that the dismissal of the Striking Our Application was grounded (or not grounded) upon the requirement of further viva voce evidence or otherwise. D(i) Retrofitting the new Statutory Bars respectfully does not fit the proviso to Section 3 of the CJA 1964 [27] With utmost respect, the FC’s attempt at yielding the new Statutory Bars to merely ‘re-invigorate’ the proviso of Section 3 of the CJA 1964, conceptually and technically does not fit. Res ipsa loquitor a Striking Out Application, the nature of Striking Out Application has the capacity to summarily determine and defeat a claim in the sense of fully determining the parties’ rights. So notwithstanding if a Striking Out Application was grounded upon locus standi or res judicata or estoppel, all these grounds carry with them, the capability to summarily defeat or quell a claim (and in turn, finally dispose of the claim filed before the Court). Thus, it is unfortunately difficult to truly fathom and discern what nature of Striking Out Application that does NOT have the effect of summarily determining a claim. This is simply because of the inescapable fact that any Striking Out Application (no matter on what grounds be it fact or law) has the ability to finally determine the Plaintiff’s claim. Therefore, in actuality there is no Striking Out Application that in nature, is ‘INCAPABLE’ of finally disposing of the claim. The end result of a Striking Out Application is a strict 50-50 chance of the claim entirely failing or the claim proceeding for full trial (of course unless the Plaintiff also filed, and the Court allowed a corresponding Application for Summary Judgment). So it is conceptually and technically unlikely for any striking out Application to fall within the proviso of ‘decisions that do not finally dispose of parties’ rights’. Thus, the FC’s supposition that the ‘refreshed statutory bar’ was intended as further clarification of the proviso was unfortunately conceptually and technically inaccurate. [28] Example being, a Striking Out Application on the basis of res judicata can carry with it the capability to summarily defeat a Plaintiff’s claim. Hence, it can finally determine the parties’ rights. Similarly, a Striking Out Application filed in impugning a Plaintiff’s locus standi or on the lapse of statutory limitation period, can also carry with it the capability to summarily defeat a Plaintiff’s claim. If the former is allowed, the Plaintiff’s claim is struck out. So, does the latter. The former might be perceived as more ‘substantive’ and ‘final’ while the latter might be perceived as more ‘technical or procedural’ and ‘preliminary’. Notwithstanding, both Striking Out Applications cannot fall within the proviso of Section 3 of the CJA 1964 (owing to the nature that the 2 Applications can finally determine the Plaintiff’s claim). Thus, despite the ‘final’ nature of the former and the ‘preliminary’ nature of the latter, it remains inescapable that a Striking Out Application cannot fall within the ambit of the proviso as the FC had propounded. Thus, with utmost reverence and humility to the FC, we are of the opinion that the FC’s proposition that the new amendments were intended to merely ‘clarify’ or ‘highlight’ the existing framework to be unfortunately inaccurate. This is simply for the unfortunate fact that the exercise of distinguishing between decisions that finally disposes of parties’ rights and decisions that do not finally dispose of parties’ rights is technically and conceptually INCOMPATIBLE with the base nature of any given Striking Out Application (in that it can carry the effect of finally disposing of a Plaintiff’s claim). D(ii) Dicta on FC’s Additional qualification as to the ‘necessity of full trial and viva voce evidence’ [29] In addition to the ‘existing framework’ (in ascertaining the ‘final nature’ of a given decision) the FC also highlighted an additional proviso in that (apart from the ‘final nature’ of the decision) the new Statutory Bars ONLY APPLY as against a dismissal of a Striking Out Application on the grounds that there is a requirement for further viva voce evidence at Full Trial. [30] However, with utmost reverence, this ‘additional’ qualification is also conceptually and technically flawed. We respectfully were unable to ascertain an instance in which a Striking Out Application ought to be dismissed IF THERE WAS NO NEED for further oral evidence vide a Full Trial for the Court to determine the claim. The natural and typical consequence of a dismissal of a Striking Out Application is Full Trial via oral evidence (except in the instance where a corresponding Summary Judgment Application was allowed instead). It is well trite and settled law that a Striking Out is allowed only in plain and obvious cases where a Full trial was unnecessary and the case can sufficiently be determined by way of affidavit depositions and exhibit evidence. Thus, it is inherently inescapable that the inverse of that would be that the case was not plain or obvious and would require viva voce evidence vide a Full Trial. There cannot and should not be a plainly and obviously unsustainable case that ought not to be struck out in limine when a Striking Out Order was applied for. When a case is not plainly or obviously unsustainable then naturally the case would definitely benefit from a Full Trial with viva voce evidence which would give more insights and clarity for the Court to make an informed decision. Thus, we respectfully are of the opinion that there is and should not be an instance where a dismissal of a Striking Out Application would not be grounded upon (or would not benefit from) the necessity of further oral evidence in a Full Trial (again unless if the Court was instead minded to allow a corresponding Summary Judgment Application filed by the Plaintiff – in which case the Defendant would undoubtedly have the right to appeal against the granting of the Summary Judgment at the Court of Appeal). [31] The example that the FC proffered on the dismissal of a Striking out Application (that was not grounded upon the need for further oral evidence) was in the hypothetical instance of the non-fulfillment of the threshold of a shareholder’s derivative action. With immense respect, the unfortunate flaw in using this example was manifold. [32] Firstly, there is no feasible instance in which a Striking Out Application would not be allowed when the threshold of derivative action was not fulfilled. The very flesh and soul of a derivative action is the threshold and if there is reasonable probability to find that the derivative action does not fulfill that threshold, then there is no reason for the Court to dismiss the Striking Out Application (as there is no requirement or necessity for further oral evidence to deliberate on the established non-fulfillment of the threshold). Succinctly speaking, the hypothetical instance that the threshold was not met CANNOT SIMULTANEOUSLY CO-EXIST with the hypothetical instance that the Striking Out Application was dismissed. It is not legalistically and factually logical that a Court would dismiss the Striking Out Application where the depositions and exhibits in affidavits were sufficient to conclude that the threshold was not met. Unless of course, THERE WAS A NEED FOR FURTHER VIVA VOCE EVIDENCE on the matter (which thereby effectively defeats the FC’s reliance on this instance as an example). And in which instance, the case would stand to benefit from a full trial via viva voce evidence. [33] The FC’s own conclusion also unfortunately negated the FC’s own rationale. The FC hypothetically concluded that a full trial and viva voce evidence would not assist the Court to ultimately decide on the threshold of derivative action issue. Which in turn would actually mean that there is no need for full trial and further oral evidence. THUS, IN THAT INSTANCE, ANY COURT WOULD HAVE ALLOWED THE STRIKING OUT APPLICATION AS THERE IS NO REASON TO DISMISS THE SAME AND STILL INSIST ON A FULL TRIAL BY VIVA VOCE EVIDENCE. [34] Even if we were to take the most extreme example of an Application to strike out a derivative action for the want or lack of locus standi (which was the typical ground to strike out a derivative action), it is unimaginable that a Court would insist on dismissing the Striking Out Application (and insist on Full Trial) when it was plain and obvious that the claimant-shareholder lacked the locus standi to institute a derivative action on behalf of the company. Again, with due humility and reverence, even in the aspect of a matter so ‘preliminary’ as locus standi, an Application to strike out a derivative action: a. still does not fall within the proviso of unappealable ‘rulings’ of Section 3 of the CJA 1964 as the Striking Out Application indeed was capable of fully determining the Plaintiff’s derivative action and; b. still does not fall within the ‘additional qualification’ of dismissals of Striking Out Application (that were not grounded upon the requirement of a Full Trial and further oral evidence). Hypothetically, if in case the issue of the shareholder’s locus standi was not sufficiently plain and obvious to summarily strike out the case, then it naturally and logically follows that the same ‘preliminary issue’ would also require (and can benefit from) a full trial with oral evidence. [35] Secondly, a Striking Out Application on the grounds of non-fulfillment of the threshold for derivative action CANNOT FALL WITHIN THE PROVISO OF NON-APPEALABLE MATTERS OF SECTION 3 CJA 1964 as it may carry the capacity and effect of fully determining the parties’ rights. If we respectfully follow the FC’s logic and interpretation, a Striking Out Application on the basis of non-fulfillment of the threshold should squarely fall within the ‘Appealable’ 1st limb of Section 3 of the CJA 1964 as it can incur a decision which fully determines the Plaintiff’s claim. Thus, the FC’s example of a Striking Out Application on the grounds of the non-fulfillment of the threshold of derivative action respectfully does not lend any assistance to the FC’s reading and interpretation of the new amendments. Thus, the FC’s reliance on the hypothetical decision to dismiss a Striking Out Application on the grounds of the non-fulfillment of the threshold of derivative action to be an example of a ‘non-appealable’ decision under the proviso to Section 3 of the CJA 1964 WAS CONCEPTUALLY AND TECHNICALLY INACCURATE AND WITH UTMOST RESPECT, FLAWED. [36] In any case, all of the above under the Heading of our dicta are merely our opinion in light of the latest FC decision on MT Ventures FC. It is not our intention to make any findings so as to steer our decision in Enclosure 20 in abidance of or in departure from the salutary findings of the FC in MT Ventures FC. Although we can conclude that even if the prevailing position in MT Ventures FC were to be the law at the time Enclosure 20 was allowed, the Appellant’s Appeal would still remain to be incompetent. This is simply because even the Appellant was alternatively open to have the same questions of law to be put to Trial ahead of the other issues in the case (as per the Appellant’s alternative reliance on Order 33 Rule 2 of the ROC 2012). Thus, the Appellant’s Appeal would have been caught by the new Statutory Bars as the dismissal of the Striking Out Application was grounded upon the necessity for further evidence at Full Trial. E. OUR DECISION [37] In view of the above deliberations, we hereby allow the Respondent’s Motion under Enclosure 20 and thus, the Appellant’s Appeal here is struck out. [38] We hasten to add that in any event the Appellant is not prejudiced that cannot be compensated with costs in the event that the Appellant eventually succeeds at the High Court after a full trial. [39] We also order costs of RM10,0000.00 to be paid by the Appellant to the Respondent, subject to allocatur. Dated 24th April 2026 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE FEDERAL COURT For the Appellant -

Dato’ Dr Gurdial Singh 2. Abraham Au Tian Hui 3. Oomen Kurien 4. Celine Chelladunrai 5. Anne Malar Joseph 6. Vam Shir Mooi 7.

David a/l Samuel 2. Thanasegar a/l Ramasamy