AMBANK (M) BERHAD v Jabatan Pengangkutan Jalan (JPJ) (AA-12ANCC-2-01/2024)

TAN SIEW HOON ... 1st THIRD PARTY

ONG KENG HOE (Kedua-duanya adalah rakan kongsi Dalam nama dan gaya Teong Seng Enterprise ..2nd THIRD PARTY

PUSPAKOM SDN BHD (285985-U) ..3rd THIRD PARTY

...4TH THIRD PARTY 30 [In Ipoh sessions court, writ of summons no: AA-A52NCC-146- 08/2019] … PLAINTIFF 35 ... DEFENDANT 40

TAN SIEW HOON

ONG KENG HOE 45 (Kedua-duanya adalah rakan kongsi Dalam nama dan gaya Teong Seng Enterprise.. 2nd THIRD PARTY

PUSPAKOM SDN BHD (285985-U) ..3rd THIRD PARTY

…4TH THIRD PARTY IN THE HIGH COURT IN MALAYA AT IPOH IN THE STATE OF PERAK DARUL RIDZUAN CIVIL APPEAL NO. AA-12ANCC-2-01/2024] 55 AMBANK (M) SDN BHD (8515-D) …APPELLANT 60

TAN SIEW HOON

ONG KENG HOE 65 (Kedua-duanya adalah rakan kongsi Dalam nama dan gaya Teong Seng Enterprise ... 2nd THIRD PARTY 70

PUSPAKOM SDN BHD (285985-U) ..3rd THIRD PARTY

PENGARAH JABATAN PENGANGKUTAN …4TH THIRD PARTY 75 [In Ipoh sessions court, writ of summons no: AA-A52NCC-146- 08/2019] 80 … PLAINTIFF 85 ... DEFENDANT 90 1. TAN SIEW HOON ...1st THIRD PARTY

ONG KENG HOE 95 (Kedua-duanya adalah rakan kongsi Dalam nama dan gaya Teong Seng Enterprise

PUSPAKOM SDN BHD (285985-U) ..3RD THIRD PARTY 100

…..4TH THIRD PARTY 105 GROUNDS OF JUDGMENT Introduction [1]. This case concerns a dispute arising from a hire purchase vehicle gone wrong. The appellant, having purchased a car through hire purchase from the respondent bank, later discovered that the car 110 was stolen. Alleging negligence, he sued the respondent bank for failing to ensure the vehicle’s genuineness before approving the financing. The respondent, however, contended that all rights and liabilities had been transferred to another entity under a vesting order, absolving it of any responsibility. Simultaneously, the 115 respondent initiated third-party proceedings against various other entities involved in the verification process, arguing that they should bear liability. [2]. The two key issues for determination are whether the respondent remained liable despite the vesting order and whether the third-party 120 claims were sustainable and could proceed independently. Background facts [3]. On 6 September 2013, the appellant, Mohd Hafizuddin bin Mohd Khar, entered into a hire purchase agreement with respondent, Ambank (M) Berhad to finance a Honda Civic S i-VTEC (A) 2.0i 125 (registration number WUV 2939). Before finalising the agreement, the appellant had the vehicle inspected by PUSPAKOM, obtaining a B5 Certificate confirming its genuine condition. Relying on this certification, the respondent approved the hire purchase financing. [4]. However, on 28 December 2015, the vehicle was seized by the 130 Road Transport Department on suspicion of tampered engine and chassis numbers. A chemical report dated 8 January 2016 confirmed that the vehicle was stolen and linked to an earlier police report in 2013. Following this discovery, the appellant initiated a lawsuit against the respondent on 29 August 2019, alleging 135 negligence for financing a stolen car without proper verification. [5]. In response, the respondent contended that all rights, liabilities, and obligations under the hire purchase agreement had been transferred to Aiqon Amanah Sdn Bhd (“Aiqon Amanah”) via a Sale and Purchase Agreement on 3 January 2019, followed by a vesting 140 order dated 19 February 2019. Consequently, the respondent argued that it was no longer liable for the appellant’s claim. The Sessions Court struck out the appellant’s claim under Order 14A and Order 33 Rule 2 and 5 of the Rules of Court 2012, leading to the 1st appeal (AA-12ANCC-1-01/2024). 145 [6]. Separately, the respondent had initiated third-party proceedings against: a) Tan Siew Hoon and Ong Keng Hoe (TP1 & TP2), the sellers of the vehicle, b) PUSPAKOM Sdn Bhd (TP3), which issued the B5 Certificate, 150 and c) The Director of the Perak Road Transport Department (TP4), responsible for maintaining vehicle registration records. 155 [7]. The respondent argued that these third parties played a role in verifying the vehicle's genuineness and should bear responsibility. However, the Sessions Court strike out the third-party notices. The respondent then filed the 2nd appeal (AA-12ANCC-2-01/2024), contending that the dismissal was erroneous. 160 Issues for determination [8]. The Court is to determine the following issues: a) Whether the appellant has a valid cause of action against the respondent in light of the vesting order. b) Whether the Sessions Court Judge erred in striking out the 165 appellant’s claim under Order 14A and/or Order 33 Rule 2 and 5 of the Rules of Court 2012. c) Whether the third-party proceedings is sustainable and should continue despite the main claim being struck out Issue 1: Whether the appellant has valid Cause of Action Against the 170 respondent [9]. The primary issue in this appeal is whether the appellant, has a valid cause of action against the respondent, in light of the vesting order dated 19 February 2019. The respondent asserts that all rights, liabilities, and obligations concerning the appellant’s loan account 175 were transferred to Aiqon Amanah through a Sale and Purchase Agreement dated 3 January 2019 and a Supplemental Agreement dated 30 August 2019. Clause 8 and 8.6 in the Sale and Purchase Agreement dated 3.1.2019 state, provides: “8. POST TRANSFER OBLIGATIONS 180 8.6 Post Completion.

After the Transfer Date, the Buyer shall manage the Debts on its own account. The Buyer shall at all times: -

ensure that it has adequate systems to manage the 185

(ii) not do, cause to be done, omit to be done or cause to be omitted and shall cause its agents and successors in title accordingly not to do, cause to be done, omit to be done or cause to be omitted anything which could damage or 190 which presents a risk of damage to the reputation, integrity and high standards of the Seller. …

(vii) retain all rights, titles, interests and benefits of the Debts and shall not dispose, assign and/or transfer any rights, 195 titles, interest and benefits of the Debts to any party.

The Buyer shall fully indemnify the Seller from and against any damage, losses, liabilities, costs, claims, charges, expenses, actions or demands which the Seller may incur or which may be 200 made, claimed, or instituted against the Seller by any person as a result of or in connection with any breach by the Buyer of its obligations under Clause 8.6(a) above or any failure or omission by the Buyer to comply with Clause 8.6(a) above. 205 [10]. The appellant, however, contends that the transfer of liability does not absolve the respondent of prior breaches and misrepresentations relating to the hire purchase agreement. [11]. The facts indicate after the hire purchase agreement with the respondent on 6 September 2013, the vehicle was confiscated by 210 the Road Transport Department on 28 December 2015. The appellant subsequently initiated legal proceedings against the respondent in 2019, alleging negligence, misrepresentation, and breach of contract due to the respondent’s failure to verify the genuineness of the vehicle before financing the transaction. 215 [12]. The respondent on the other hand argues that the vesting order conclusively transferred all existing liabilities to Aiqon Amanah, rendering it the proper party to be sued. Under the vesting order, all legal proceedings and obligations related to the loan account were assigned to Aiqon Amanah. The following paragraphs from the 220 vesting order dated 19th Feb 2019, confirm the assignment (append below the English translation):

that the VO Debts which constituted part of the Transferor's banking business, together with all prevailing rights, benefits and interests of the Transferor under the 225 Associated Loan Documents shall be transferred to and vest in the Transferee with effect on and from the Transfer Date:

3.2 any account and/or loan between the Transferor and its Debtors shall become an account and/or Loan between the 230 Transferee and the Debtors, subject to the same conditions and incidents existed between the Transferor and its Debtors, and such account to be deemed for all purposes to be a single continuing account and/or single continuing Loan; 235 3.11 In respect of any right or liability of the Transferor transferred to the Transferee pursuant to the Vesting Order, the Transferee shall have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or Loan Proceedings or 240 making or resisting applications to any authority) for ascertaining, protecting or enforcing that right or resisting that liability of the Transferor as if it had at all times been a right or liability of the Transferee, including those rights or liabilities in respect of any legal proceedings or Loan 245 Proceedings or applications to any authority pending immediately before the Transfer Date by or against the

3.13 all Court Deposit as at the Transfer Date belongs to 250 the Transferee; [13]. Thus, any claims arising from the hire purchase agreement should have been directed at Aiqon Amanah rather than the respondent. This position was upheld by the Sessions Court, on which grounds 255 the learned Session Court Judge struck out the appellant’s claim under Order 14A and/or Order 33 Rule 2 and 5 of the Rules of Court 2012. [14]. The appellant challenges that the respondent never informed him of the transfer of rights and obligations to Aiqon Amanah. The 260 appellant argues that the cause of action against the respondent was already established when the vehicle was confiscated in 2015, long before the vesting order came into effect. The appellant relies on the principle that a cause of action accrues the moment a contractual breach or tortious act occurs, as established in Loh Wai 265 Lian v. Sea Housing Corp. Sdn. Bhd. [1984] 1 CLJ Rep 223; [1984] 2 MLJ 280; [1984] 1 MLRA 143; [1983] 1 MLRH 416. In that case, the Federal Court held that a right to sue arises upon a breach of contract and that time runs from the date of the breach, not from the date of subsequent developments. Similarly, the appellant here 270 argues that his claim against the respondent predates the vesting order and should not be invalidated by the subsequent transfer of obligations. [15]. The respondent, on the other hand, maintains that the Sessions Court had correctly dismissed the claim, citing the binding nature of 275 the vesting order. The respondent further relies on the case of Abdul Kashab Hj Hanafi v. Hong Leong Bank Bhd [2016] 8 CLJ 487; [2016] 5 AMR 297, where it establishes that a vesting order is effective upon issuance, regardless of whether affected parties were notified. Under Section 104(2) of the Financial Services Act 2013, 280 similar to Section 50(3) Banking and Financial Institutions Act 1989 (BAFIA), vesting order have the effect of all rights, liabilities, and interests automatically transfer to the assignee. The respondent submits that, based on this principle, the appellant is bound by the 3rd January 2019 Sale and Purchase Agreement between the 285 respondent and Aiqon Amanah. His Lordship Justice Mohd Nazlan Ghazali in Abdul Kashab Hj Hanafi (supra) states: “Issue 4 - Vesting Order Not Served On Appellant [33] The argument that the appellant did not get the notice of the vesting of the HP agreement and the hire purchase 290 facility from EON Bank Bhd to Hong Leong Bank Bhd is similarly lacking in merit in view of the clear language of s. 50(3) of the former Banking and Financial Institutions Act 1989 which was in force at the time of the vesting of all assets and liabilities of the former to the latter, and which 295 stipulated that such transfer to be effective on the transfer date referred to in the order of the High Court notwithstanding any law or rule of law. The vesting order is all encompassing (see Phileo Allied Bank (Malaysia) Bhd v. Koshish Credit & Leasing Sdn Bhd [2001] 4 CLJ 788 and the Court of 300 Appeal decision in Leong Moh Sawmill Co Sdn Bhd v. Standard Chartered Bank & Ors [1997] 2 CLJ 131). The entirety of s. 50(3) is reproduced below:

Where the order of the High Court under subsection (1) provides for the transfer of any property or business vested 305 in or held by the transferor, either alone or jointly with any other person, then, by virtue of the order, that property or business shall, on and from the transfer date, become vested in or held by the transferee either alone or, as the case may be, jointly with such other person, and the order shall have 310 effect according to its terms notwithstanding anything in any law or in any rule of law, and shall be binding on any person thereby affected, regardless that the person so affected is not a party to the proceedings under this section or any other related proceedings, or had no notice of the proceedings 315 under this section or of other related proceedings. (emphasis added) [34] As such the appellant's complaint about not having been informed about the vesting is of no relevance, for the law made it manifest that the vesting took effect nevertheless. 320 For otherwise, financial institutions would have to enter into a novation in respect of each and every loans and business agreement. As stated in the section, the absence of notification to the customers too does not affect the effectiveness of the transfer, although obviously it would 325 make practical sense if this was done. In fact, although not raised by the respondent, pursuant to s. 50(4), the vesting order must be published in two daily newspapers; one in the national language and the other in English. Although BAFIA has been repealed, similarly worded vesting provisions are 330 enacted in s. 104(2) of the Financial Services Act 2013. In any event, in the instant case, the various statutory notices sent under the HP Act had clearly demonstrated Hong Leong Bank Bhd as the new owner of the car under the HP Act which would be deemed by BAFIA in light of the 335 vesting order, to have been entered into by Hong Leong Bank Bhd from the time it was actually so executed by the original financier owner and the appellant. As such, this contention of the appellant too is devoid of merit.” 340 (Underlined emphasised) [16]. The respondent submits under the vesting order, Aiqon Amanah effectively stepped into its position as the creditor, meaning that any dispute regarding the hire purchase agreement should be pursued 345 against Aiqon Amanah and not the respondent. [17]. Further, the respondent contends that the appellant was fully aware of the vesting order, as the appellant did not object when the respondent applied to amend its statement of defence in May 2023 to plead vesting order as a defence. The amendment explicitly 350 stated that all liabilities of the respondent had been assigned to Aiqon Amanah. The respondent argues that the appellant’s failure to challenge this assignment in a timely manner reinforces the conclusion that no valid cause of action remains against the respondent. Further, the respondent asserts that permitting the 355 claim to proceed would render the vesting order meaningless and thereby go against the terms of a court order. [18]. The appellant’s argument that the cause of action accrued before the vesting order is without merit. While it is true that a cause of action accrues at the time of a contractual breach and that is, before 360 the vesting order. The crucial issue is not the date of the breach but whether the correct party has been sued. Pursuant to Clause 3.13 of the vesting order, all legal, arbitration, tribunal, and other proceedings related to the vesting order debts that were pending immediately before the transfer date (22 February 2019) and in 365 which the respondent was a party may continue as if Aiqon Amanah had been party instead of the respondent. This means that after 22 February 2019, Aiqon Amanah assumes all legal responsibilities and liabilities of the respondent in ongoing proceedings, effectively substituting the Aiqon Amanah as the proper party in place of the 370 respondent. [19]. In this case, the entity legally to be named as a party in the proceeding is Aiqon Amanah because by reason of clause 3.13 the one responsible for any contractual obligations at the time of the lawsuit was Aiqon Amanah, not the respondent. Moreover, the 375 appellant’s failure to object to the amendment incorporating the vesting order further weakens his position. [20]. During the oral submissions by the parties at the hearing of the appeal before this court, I was moved by the fact that the appellant is an innocent victim of the circumstances and was constrained to 380 order that the case be remitted to the Sessions Court, with a directive for the appellant to amend the pleadings to include Aiqon Amanah as the respondent so as to enable the appellant to proceed with the action. The respondent objected to this and contended that the appellant had ample opportunity to take the necessary steps, 385 including amending the pleadings, as they were aware of the vesting order as early as May 2023 or should have taken notice when it was advertised in Berita Harian and New Straits Times sometime after 19 February 2019. In this regard, I refrain from intervening, as I am reminded of the words of Justice James Foong FCJ (as he then 390 was) in RHB Bank Bhd v Kwan Chew Holding Sdn Bhd [2010] 2 MLJ 188; [2010] 1 CLJ 665; [2010] 2 AMR 590; [2009] 3 MLRA 162, where he emphasised that the court must not create a defence under the guise of justice. His exact words were: “On this, we would like to add that it is not the duty of the 395 court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the court to pursue a cavalier approach to solving their dispute 400 by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the court must be discouraged otherwise the court would be accused of making laws rather than applying them to a given set of facts” (Underlined emphasised) 405 [21]. However, having reviewed the submissions from both parties, I find that the Sessions Court correctly determined that the appellant’s claim against the respondent was unsustainable in law. The vesting 410 order, being a legal instrument, effectively transferred all rights and liabilities to Aiqon Amanah. The respondent, therefore, no longer had any legal obligation toward the appellant at the time the suit was filed in 2019. If the appellant wished to pursue a claim, the proper party to be sued was Aiqon Amanah. 415 [22]. Accordingly, this Court upholds the Sessions Court’s decision to strike out the claim under Order 14A and Order 33 Rule 2 and 5 of the Rules of Court 2012. Issue 2: Whether Sessions Court Judge erred in striking out the claim pursuant to Order 14A and/or Order 33 Rule 2 and 5 of the 420 Rules of Court 2012. [23]. The Sessions Court did not err in striking out the appellant’s claim under Order 14A and Order 33 Rule 2 and 5 of the Rules of Court

The Court correctly exercised its discretion by determining that the matter could be disposed of without a full trial based on 425 undisputed documentary evidence, particularly the vesting order dated 19 February 2019 and the Sale and Purchase Agreements between the respondent and Aiqon Amanah. [24]. Pursuant to Order 14A of the Rules of Court 2012, the Court is empowered to determine pure questions of law without 430 necessitating a full trial, provided the legal issue is clear and decisive. In Petroleum Nasional Bhd v Kerajaan Negeri Terengganu & Another Appeal [2004] 1 MLJ 82; [2003] 4 CLJ 337, the Court of Appeal emphasised the importance of addressing threshold legal issues at an early stage to prevent unnecessary 435 litigation, minimise costs, and avoid prolonged proceedings. At paragraph 19, page 22, Justice Mohd Noor Ahmad JCA aptly stated: "… Therefore, the determination of the threshold issue as preliminary issues will be decisive of the whole litigation or essentially the main part of the suit. Thus, resulting in a 440 substantial saving of time and cost as it will significantly cut down the costs and time involved in pre-trial preparation or in connection with the trial proper.” [25]. In the present case, the existence of the vesting order was 445 undisputed, and it conclusively transferred all rights, interests, and liabilities from the respondent to Aiqon Amanah. Given this, the Sessions Court correctly determined that there was no reasonable cause of action against the respondent, thereby justifying the decision to strike out the claim without proceeding to trial. 450 [26]. Similarly, Order 33 Rule 2 and 5 of Rules of Court 2012 empowers the Court to resolve preliminary legal issues before trial if such issues would be decisive to the dispute. The vesting order was a key legal instrument that effectively removed the liability from the respondent, making Aiqon Amanah the rightful party to be sued. 455 [27]. Further, the Court of Appeal in Abdul Kashab Hj Hanafi (supra) ruled that a vesting order takes effect regardless of whether the affected party was notified, and the transfer is valid and binding. [28]. In light of what was stated above, this Court finds that the Sessions Court’s ruling was correct and in accordance with established 460 principles of procedural efficiency. The decision to strike out the claim was justified as the respondent was no longer the proper party to be sued, and any claim should have been directed against Aiqon Amanah. Therefore, the appeal is dismissed, and the Sessions Court's decision is upheld. 465 Issue 3: The 2nd Appeal (AA-12ANCC-2-01/2024) filed by the respondent, (Ambank (M) Berhad), against the same Sessions Court decision regarding its order to cancel third-party notice. [29]. The key issue in this appeal is whether the third-party proceedings 470 against TP1, TP2, TP3, and TP4 should continue after the main action has been struck out. Specifically, the court must determine whether such proceedings can stand independently of the main claim. Third-party proceedings are independent claims initiated by the respondent against third parties, primarily for indemnity. The 475 fundamental purpose of Order 16 of the Rules of Court 2012 is to consolidate related disputes and prevent a multiplicity of actions. Courts have emphasised the separate nature of third-party proceedings in cases such as KM N SP N Valliammai Achi (F) v. ARS Nachiappa Chettiar [2000] 2 MLRH 513 [1957] MLJ 27 (CA) 480 and KPS-HCM Sdn Bhd v Shahrul Izewan Mat Husin & Ors [2018] 11 MLJ 481; [2018] 6 CLJ 772; [2018] AMEJ 0246, where it was held that such proceedings are distinct from the main action between the appellant and the respondent. [30]. The striking out of the main action does not automatically extinguish 485 third-party proceedings. In Stott v West Yorkshire Road Car Co Ltd [1971] 3 All ER 534, the court ruled that third-party claims may continue even if the dispute between the appellant and the respondent has been settled. However, third-party proceedings may be struck out where they no longer serve a practical purpose. The 490 High Court in Chang Chor Heong v Puncak Kencana Sdn Bhd (Lim Kim Kee, third party) [2008] 8 MLJ 553; [2009] 7 AMR 763; [2008] CLJU 384; 2008] 5 MLRH 769(refd), held that a third-party claim cannot stand where the respondent’s liability towards the appellant has not been established. Similarly, in Inai Bina Sdn Bhd 495 v Mohd Rizzal bin Shamat (t/a Kejuruteraan Perdana Teguh) (Bintang Kencana Sdn Bhd, third party) [2015] 11 MLJ 360; [2015] CLJU 674; [2015] AMEJ 755; [2017] MLRHU 362, the court demonstrated that a third-party claim might be struck out if it lacks a reasonable cause of action. Under Order 16 Rule 6 of the Rules 500 of Court 2012, the court has the discretion to set aside third-party proceedings at any stage. [31]. In the present case, the respondent seeks indemnity from all third-parties (TP1, TP2, TP3 & TP4) for any liability, costs, and damages payable to the appellant, alleging breach of warranties, negligence, 505 and failure to maintain accurate records. TP1 and TP2, as used car dealers, assured the respondent that the vehicle was legally sellable and free from defects. The respondent relied on these assurances when purchasing the vehicle and entering into a hire-purchase agreement with the appellant. If the appellant’s claim is upheld, TP1 510 & TP2 would be liable for breach of warranty under Section 14(a) of the Sale of Goods Act 1957 (Akta 382), and the respondent seeks indemnity for any costs or damages awarded to the appellant. TP3 (Puspakom Sdn Bhd) is claimed to have failed to conduct proper vehicle inspections or reported incorrect vehicle conditions, 515 as it issued an inspection certificate on 27.8.2013, which the respondent relied upon before entering the hire-purchase agreement. If the appellant’s claim is successful, the respondent seeks indemnity for any liability arising from TP3’s negligence. TP4 (JPJ Perak) is responsible for maintaining accurate vehicle 520 registration records. If the appellant’s claim is upheld, it implies TP4 failed to update vehicle records, affecting the vehicle’s hire-purchase eligibility, and the respondent seeks indemnity for damages caused by inaccurate records. Append below the claims by the respondent against the respective third party: 525 Tan Siew Hoon dan Ong Keng Hoe (Pihak Ketiga yang Pertama dan Pihak Ketiga yang

Pihak Ketiga Pertama dan Pihak Ketiga yang Kedua, 530 kedua-duanya merupakan rakan kongsi bagi suatu penjual kenderaan terpakai di bawah nama dan gaya Teong Seng Enterprise.

Plaintif telah memeriksa satu kereta Honda Civic S i-VTEC 535

(A) 2.0i (Facelift) yang bernombor plat WUV 2939 (selepas ini dikenali sebagai 'kereta tersebut') di premis Pihak Ketiga yang Pertama dan Pihak Ketiga yang Kedua.

Pihak Ketiga yang Pertama dan Pihak Ketiga yang Kedua 540 telah memberikan satu akujanji bahawa: i. Mereka adalah pihak yang diberi kuasa dan mempunyai hak di sisi undang-undang untuk menjual kereta tersebut; dan 545 ii. kereta tersebut tidak mempunyai sebarang kecacatan dan tidak pernah diusik pada pembinaan, struktur, nombor chasis, nombor enjin atau mana-mana nombor pengenalan lain. 550

Defendan telah membeli kereta tersebut daripada Pihak Ketiga Pertama dan Pihak Ketiga yang Kedua berdasarkan akujanji yang diplidkan diatas dan memasuki perjanjian sewa beli yang bertarikh 6.9.2013 dengan Plainitf bersandarkan 555 kepada akujanji Pihak Ketiga yang Pertama dan Pihak Ketiga yang Kedua.

Dan dalam apa cara sekalipun akujanji tersebut adalah terma tersirat penjualan kenderaan tersebut dari Pihak 560 Ketiga yang Pertama dan Pihak Ketiga yang Kedua kepada Defendan menurut seksyen 14(a) Akta 382. Sekiranya tuntutan Plaintif dibenarkan terhadap Defendan disini maka la bermakna akujanji serta terma jualan yang 565 diberikan oleh Pihak Ketiga yang Pertama dan Pihak Ketiga yang Kedua telah dimungkiri dibawah seksyen 14(a) Akta 382.

Sekiranya Defendan disini adalah bertanggungan kepada 570 Plaintif, maka Defendan berhak ditanggung rugi oleh Pihak Ketiga yang Pertama dan Pihak Ketiga yang Kedua secara bersesama dan berasingan dengan Pihak Ketiga yang Ketiga terhadap tuntutan Plaintif tersebut beserta kos yang harus dibayar oleh Defendan termasuk kos membela 575 tuntutan Plaintif di dalam ini dan kos notis ini beserta faedah berhak. Puspakom Sdn Bhd (Pihak Ketiga yang Ketiga) 580

Pihak Ketiga yang Ketiga merupakan pihak yang telah meluluskan pemeriksaan dan mengeluarkan sijil pemeriksaan tukar milik yang bertarikh 27.8.2013 yang mana Defendan sandarkan kepadanya sebelum Perjanjian Sewa Beli yang bertarikh 6.9.2013 dimasuki diantaranya dengan 585 Plaintif. Sekiranya tuntutan Plaintif terhadap Defendan dibenarkan maka ia bermakna Pihak Ketiga yang Ketiga telah cuai, lalai dan/atau gagal dalam melaksanakan pemeriksaan 590 sewajarnya ke atas kereta tersebut dan/atau melaporkan keadaan yang sebenarnya. Sekiranya Defendan disini adalah bertanggungan kepada Plaintif, maka Defendan berhak ditanggung rugi oleh Pihak 595 Ketiga yang Ketiga secara bersesama dan berasingan dengan Pihak Ketiga yang Pertama, Pihak Ketiga yang Kedua dan Pihak Ketiga yang Ketiga terhadap tuntutan Plaintif tersebut beserta kos yang harus dibayar oleh Defendan termasuk kos membela tuntutan Plaintif di dalam 600 ini dan kos notis ini beserta faedah berhak. Pengarah Jabatan Pengangkutan Jalan Negeri Perak (Pihak Ketiga yang Keempat) 605

Pihak Ketiga Yang Keempat selaku pihak yang menyimpan dan mengekalkan sistem pendaftaran kenderaan bermotor. 2 Sekiranya tuntutan Plaintif terhadap Defendan dibenarkan 610 maka ia bermakna Pihak Ketiga Yang Keempat telah gagal dalam menyimpan dan menyenggara sistem pendaftaran kenderaan bermotor yang tepat dan boleh dipercayai.

Oleh itu, Pihak Ketiga Yang Keempat telah gagal untuk 615 mengemaskini sistem maklumat untuk mencerminkan status kesesuaian kenderaan tersebut untuk antara lain disewa beli.

Ini juga bermakna, Pihak Ketiga Yang Keempat telah cuai, 620 lalai dan/atau gagal dalam mengemaskini pendaftaran dan maklumat sistem dengan maklumat yang terbaharu termasuk kegagalan untuk mengemaskini sistem maklumat diantaranya dari pihak Polis Diraja Malaysia 625

Sekiranya Defendan disini adalah bertanggungan kepada Plaintif, maka Defendan berhak ditanggung rugi oleh Pihak Ketiga Yang Keempat secara bersesama dan berasingan dengan Pihak Ketiga yang Pertama, Pihak Ketiga yang Kedua dan Pihak Ketiga yang Ketiga terhadap tuntutan 630 Plaintif tersebut beserta kos yang harus dibayar oleh Defendan termasuk kos membela tuntutan Plaintif di dalam ini dan kos notis ini beserta faedah berhak. (Underlined emphasised) 635 [32]. Having dismissed the main action, the court finds there is no purpose in maintaining the third-party action as there is no liability attached to the respondent that would justify seeking indemnity from 640 the third-parties. As established in Chang Chor Heong (supra) and Inai Bina (supra), a third-party claim based solely on indemnity cannot stand when the primary claim against the respondent has been struck out. The Sessions Court’s decision to strike out the third-party proceeding is correct. Therefore, 2nd appeal is 645 accordingly dismissed, as it no longer serves any legal purpose. However, the Sessions Court’s costs order in favour of the respondent remains intact. Conclusion [33]. Based on the foregoing, the appellant’s appeal in the 1st appeal is 650 dismissed against the respondent as it is unsustainable in law. The vesting order effectively transferred all rights and liabilities to Aiqon Amanah, making any claim against the respondent improper. Accordingly, I also dismiss the 2nd appeal as I find there is no purpose in maintaining the third-party action as there is no liability 655 attached to the respondent for there to be an indemnity against the third parties. [34]. In respect of the 1st appeal (AA-12ANCC-1-01/2024), enclosure 1 is dismissed, with costs of RM2,000 awarded to the respondent and RM1,000 awarded separately to each of the third-parties. In respect 660 of the 2nd Appeal (AA-12ANCC-2-01/2024), enclosure 1 is dismissed without any order as to costs. Date : 24 February 2025 665 Moses Susayan MOSES SUSAYAN 670 Judicial Commissioner High Court in Malaya at Ipoh, Perak 675 Counsel : For the Appellant : Muhammad Wafi bin Abdullah (together with T. Manoharan) 680 Advocates and Solicitors [Messrs Krish Mano & Associates] Ipoh, Perak For the Respondent 1 : Shassidaren Deva Sana Pathy 685 (together with Jeyaramm Rajan) Advocates and Solicitors [Messrs Maxwell Kenion Cowdy] Ipoh, Perak 690 For the Respondent 2 : Siti Norashikin binti Hassanor Senior Federal Counsel Civil Division Perak Legal Advisor Offices Ipoh, Perak 695 For the Respondent 5 : Kenneth Koh (together with Afiq Iskandar bin Aziz Advocates and Solicitors [Messrs Xavier & Koh Partnership] 700 Kuala Lumpur (Notice: This Grounds of Decision is subject to official editorial revision) 705 Headnotes Civil Procedure ─ Disposal of action without trial ─ vesting order transferring rights and liabilities ─ Whether appellant's claim against respondent was sustainable ─ Whether claim should have been directed to Aiqon Amanah ─ Whether Sessions Court correctly struck out claim 710 under Order 14A and Order 33 Rule 2 and 5 of the Rules of Court 2012. Contract ─ Hire purchase agreement ─ Transfer of liabilities ─ Effect of vesting order ─ Whether respondent remained liable for misrepresentation and negligence ─ Whether appellant’s cause of action predated vesting order. 715 Civil Procedure ─ Third party proceedings ─ Effect of striking out main action ─ Whether third party proceedings can continue independently ─ Whether respondent had valid indemnity claims against third parties ─ Discretion of court to strike out third party proceedings under Order 16 Rule 6 of the Rules of Court 2012. 720