Bintai Kinden Corporation Berhad v Yeo Eng Lam (MA-22NCC-23-11/2025)

The matter for determination is the Defendant's application in Enclosure 8 to strike out the Plaintiff's Writ of Summons and Statement of Claim under Order 18 Rule 19(1)(b) and (d) of the Rules of Court 2012, and in the alternative, under the inherent jurisdiction of the Court.

The underlying action arises from a transaction by which the Plaintiff, a public listed company, acquired the entire issued share capital of Johnson Medical International Sdn Bhd ("JMI") from the Defendant pursuant to a Share Sale Agreement dated 28 April 2021 for a total consideration of RM50,000,000.00. The transaction was supported by a contemporaneous Deed of Profit Guarantee and Escrow of the same date, under which the Defendant undertook, as guarantor, that JMI would attain cumulative profits of not less than RM9,100,000.00 within a stipulated guarantee period ending 31 March 2023.

The dispute now before the Court concerns whether the Defendant continues to be liable upon that guarantee, or whether she has been discharged from it by a sequence of arrangements concluded in December 2022 involving the introduction of a third party, Rinani Care Sdn Bhd ("Rinani"), purportedly in substitution of the Defendant as guarantor.

The Defendant's case for striking out rests primarily upon the Plaintiff's own letter dated 21 December 2022, the contents of which include language of release. The Plaintiff's case in resistance is that the language of release is conditional upon matters specified in the underlying contractual scheme, the conditions are not shown to have been satisfied, and the validity, authenticity and legal effect of the documents relied upon are themselves in dispute.

The central question, and the only question that the Court is called upon to determine at this stage, is a narrow one: whether the action is so plainly and obviously unsustainable that it falls within the exceptional class of cases warranting summary disposal, or whether it raises bona fide triable issues that ought to be tried on their merits. The Court emphasises at the outset that nothing in these Grounds resolves or pre-empts the substantive disputes between the parties. Those disputes are reserved entirely for the trial Court.

The material facts, drawn from the pleadings and the affidavits filed in this application, may be stated in summary form. They are stated at this stage as pleaded or as deposed; their ultimate proof is not, and cannot be, a matter for determination on an Order 18 Rule 19 application.

By a Share Sale Agreement dated 28 April 2021 ("the Share Sale Agreement"), the Plaintiff acquired from the Defendant 3,000,002 ordinary shares representing the entire issued share capital of JMI for a total consideration of RM50,000,000.00. The consideration was satisfied as to RM26,000,000.00 in cash and as to the balance by the allotment of 58,536,600 ordinary shares in the Plaintiff to the Defendant.

Clause 5.1 of the Share Sale Agreement embodied a profit guarantee. The Defendant undertook that JMI would generate cumulative profits of not less than RM9,100,000.00 for the period 1 April 2021 to 31 March 2023, comprising RM3,500,000.00 for the first guarantee period and RM5,600,000.00 for the second. Clause 5.3 permitted variation of the security arrangements. The parties did so vary them: in place of a cash deposit of RM9,100,000.00, the Defendant deposited RM100,000.00 in cash together with 30,000,000 ordinary shares in the Plaintiff with the appointed stakeholder, Messrs Teh & Lee.

On 28 April 2021 the Plaintiff, the Defendant and Messrs Teh & Lee executed a Deed of Profit Guarantee and Escrow ("the Deed of Guarantee”), in which the Defendant's guarantee was expressed to be given "unconditionally and irrevocably". A Service Agreement of the same date provided for the Defendant to serve as the President of JMI until 31 July 2023.

According to JMI's audited financial statements, JMI recorded a loss of RM311,958.00 as at 31 March 2022 and a further loss of RM2,820,118.00 as at 31 March 2023. JMI did not attain the profit figures guaranteed by the Defendant.

In December 2022 a sequence of events occurred upon which the present application turns. The pleadings and the affidavits disclose the following:

A Directors' Circular Resolution of the Plaintiff dated 14 December 2022, exhibited as Exhibit D-4 to the Defendant's affidavit affirmed on 10 March 2026, records in its preambular recitals (i) that the Defendant had deposited the RM100,000.00 in cash and the 30,000,000 ordinary shares with the appointed stakeholder, and (ii) that "as at to date, the Profit Guarantee and the Receivable Guarantee have not been fulfilled by YEL". The operative paragraphs of the resolution record approval for the Plaintiff to enter into an "Agreement to Release" with the Defendant on the terms and conditions of that Agreement, and for the Plaintiff to enter into a Termination of Service Agreement, the termination to take effect upon execution of the aforesaid Agreement to Release.

A letter from Rinani to the Defendant dated 21 December 2022, exhibited as Exhibit D-5 to the same affidavit, in which Rinani informed the Defendant that it had executed "a New Guarantee with the Plaintiff" and that it had instructed the appointed stakeholder to release the RM100,000.00 cash to Rinani. The letter expressly acknowledged that Rinani and the Plaintiff had "yet to appoint a new stakeholder", and requested the Defendant to delay transferring the 30,000,000 shares and instead to "hold the Escrow Shares on trust for [Rinani] until such time when [Rinani] provide [the Defendant] with the date for the transfer". The Defendant signed the letter in token of her agreement.

A letter from the Plaintiff to the Defendant dated 21 December 2022, exhibited as Exhibit D-6 to the same affidavit. This letter, upon which the Defendant places principal reliance, confirmed the Plaintiff's agreement to Rinani's request that the Defendant hold the 30,000,000 shares on trust for Rinani, and contains the operative passage: "... As such, the Completion referred to in clause 4.2 of the Agreement to Release PG is deemed completed. In accordance with Clause 4.3 of the Agreement to Release PG, (the Defendant) are hereby released and discharged from any further obligations to meet the Profit Guarantee and Receivables Guarantee and we shall have no further claim whatsoever against each other under the SSA PG Obligation and the Deed of PG."

The Plaintiff has produced, as Exhibit B-1 to the affidavit affirmed by Amirul Arifin Sopiee Bin Md Noordin on 31 March 2026, an undated and unstamped instrument said to be the "Agreement to Release PG" referred to in the 21 December 2022 letter. Clause 4.2 of that instrument, in material part, provides that the obligation pursuant to Clause 3 "shall be deemed completed ('Completion') upon the New Stakeholder provided a written confirmation together with relevant supporting documents (as may be required by BINTAI) evidencing the Escrow Share and Escrow Cash has been transferred to the Stakeholder holding as a stakeholder pursuant to the terms agreeable to BINTAI and RCSB". The Defendant, in paragraph 5 of her affidavit affirmed on 10 March 2026, deposes that she is unable to confirm whether the undated and unstamped instrument so produced is the same instrument as the "Agreement to Release PG" referred to in the 21 December 2022 letter.

By a Notice to Remedy dated 21 September 2023, the Plaintiff's solicitors called upon the Defendant to remedy her alleged breach of the profit guarantee. The Defendant's solicitors replied on 13 October 2023 asserting that the Defendant had been released as guarantor in December 2022 and replaced by Rinani with the Plaintiff's consent. The Plaintiff denied that contention by its solicitors' letter dated 24 October 2023, and issued a formal Letter of Demand dated 25 October 2023 for the sum of RM9,100,000.00.

The Statement of Claim, filed on 23 November 2025, pleads that the Defendant breached the Deed of Guarantee; that the 30,000,000 shares which ought to have remained under the control of the appointed stakeholder were transferred without the Plaintiff's authority, first to a company named Majestic Salute Sdn Bhd, and thereafter into the Defendant's own name; and that the Defendant remains liable for the guaranteed sum of RM9,100,000.00. The reliefs sought include declarations as to the validity of the Share Sale Agreement, the Deed of Guarantee and the Service Agreement, judgment in the guaranteed sum, exemplary damages to be assessed, interest, and costs on the solicitor-client basis.

The Defendant has entered appearance and filed a Defence and Counterclaim. The Counterclaim seeks recovery of the sum of RM9,000,000.00 said to be the unpaid balance of the purchase price, together with damages in respect of the alleged diminution in value of the shares allotted to the Defendant under the Share Sale Agreement. The Defendant now applies in Enclosure 8 to strike out the Plaintiff's pleadings while maintaining her own Counterclaim. The affidavits filed in respect of Enclosure 8 are: the Defendant's affidavit affirmed on 10 March 2026 (Enclosure 9); the Plaintiff's affidavit in reply affirmed by Amirul Arifin Sopiee Bin Md Noordin on 31 March 2026 (Enclosure 12); and the Defendant's affidavit in reply affirmed on 22 April 2026 (Enclosure 13).

The application gives rise to the following issues:

Whether the Plaintiff's Statement of Claim discloses no reasonable cause of action and is so plainly and obviously unsustainable as to warrant summary striking out under Order 18 Rule 19(1)(b) and (d) of the Rules of Court 2012;

(ii) Whether the Plaintiff's letter dated 21 December 2022, read together with the other contemporaneous instruments, operates as a complete and unconditional release of the Defendant such that the Plaintiff's cause of action is extinguished as a matter of law on the undisputed materials;

(iii) Whether section 64 of the Contracts Act 1950, and the principles of waiver by conduct articulated in the authorities, are capable of disposing of the Plaintiff's claim summarily on the affidavit evidence now before the Court;

(iv) Whether the pleaded prayer for exemplary damages discloses a cause of action capable of being entertained having regard to the nature of the claim; and

Whether the presence of the Defendant's own Counterclaim has any bearing on the disposal of the present application. D. LEGAL FRAMEWORK The threshold for striking out under Order 18 Rule 19

Order 18 Rule 19(1) of the Rules of Court 2012 empowers the Court at any stage to strike out a pleading on the grounds that it is (b) scandalous, frivolous or vexatious, or (d) otherwise an abuse of the process of the Court. The governing principles are settled.

The summary jurisdiction is exercisable only in plain and obvious cases. The Supreme Court in Bandar Builder Sdn Bhd & 2 Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (Supreme Court) reaffirmed that the power is drastic in its consequences and to be exercised with the greatest caution; a claim is not to be struck out merely because it appears weak, and so long as a pleading discloses some cause of action or raises a question fit to be decided, the weakness of the case is no ground for striking out. The principle is restated to similar effect in See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 (Court of Appeal) and Sivarasa Rasiah v Che Hamzah Che Ismail [2012] 1 MLJ 473 (Court of Appeal). The role of affidavit evidence on a striking out application

It has been said, on the authority of Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212 (Privy Council per Lord Diplock at p 217, that a judge is not bound "to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself ...". That dictum, frequently invoked in summary proceedings, makes clear that the Court is not powerless in the face of bare or evasive denials. But Eng Mee Yong does not transform a striking out application into a vehicle for the resolution of substantive disputes. It permits the Court to disregard equivocal or implausible assertions; it does not permit the Court to make findings of fact on contested contemporary documents whose authenticity, construction and effect are in issue. Section 64 of the Contracts Act 1950 and waiver by conduct

Section 64 of the Contracts Act 1950 provides: "Every promisee may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit."

The breadth of section 64 is established. In Kerpa Singh v Bariam Singh [1966] 1 MLJ 38 (Federal Court), the Federal Court held that the acceptance and retention of a smaller sum offered in full discharge of a debt may operate as a satisfaction discharging the debtor. In Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287, the Supreme Court confirmed that, under section 64, neither consideration nor a fresh agreement is necessary for a promisee to dispense with performance.

A related principle, distinct from but operating alongside section 64, is that the parties' conduct may itself preclude a party from later insisting on a contractual condition that the parties had treated as inoperative. In Chase Perdana Bhd v Md Afendi bin Hamdan [2008] 5 MLJ 625 (Court of Appeal) the court observed that where parties to a conditional obligation "conduct themselves in such a way as to show that the condition is not to matter, then, neither can at a later stage seek to reply or insist upon such condition". The doctrine, however, depends upon proof of the requisite conduct a matter of fact rather than of law.

Conversely, where an obligation is in terms conditional on the occurrence of a stipulated event, the non-occurrence of that event may excuse performance. The principle was applied in Nga Sheau Sheau v United Merchant Finance Bhd [2004] 4 MLJ 53 (High Court), where it was held that the non-fulfilment of a condition precedent may render the agreement non-binding until such condition is fulfilled. Whether a particular term operates as a condition precedent, and whether that condition has been fulfilled or waived by conduct, are again questions that turn on the factual matrix. Exemplary damages in actions sounding in contract In Big Man Management Sdn Bhd v Tenaga Nasional Bhd [2025] 5 MLJ 290, the Federal Court observed that exemplary damages are not ordinarily available in an action grounded purely in breach of contract. The availability of such damages was held to depend upon the existence of a concurrent cause of action grounded upon a breach of statutory duty pleaded on the statement of claim. The Court of Appeal's analysis in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 identifies the nature and rationale of exemplary damages — namely, that they may be awarded where a defendant's conduct is marked by vindictiveness, malice, or contumelious disregard for the plaintiff's rights — and serves punitive, deterrent and vindicatory ends. The relationship between Sambaga Valli and Big Man Management lies in this: Sambaga Valli identifies the categorical conduct that may support exemplary damages, while Big Man Management specifies the doctrinal foundation in which such damages may be entertained, namely the existence of an actionable wrong beyond mere breach of contract.

Order 15 Rule 2(3) of the Rules of Court 2012 provides that a counterclaim may be proceeded with notwithstanding that judgment is given for the plaintiff in the action, or that the action is stayed, discontinued or dismissed. The Counterclaim is thus, in principle, an independent cause of action that survives the disposal of the principal claim. That, however, addresses only the procedural consequences of striking out; it does not address whether striking out ought, in the first place, to be ordered.

The threshold question

The question whether a pleading discloses no reasonable cause of action, or is frivolous, vexatious or an abuse of process, is to be answered by asking whether the action, on the assumption that the pleaded facts are capable of being made out, is so devoid of merit that it could not, on any view of the facts and the law, succeed. The standard is exacting. It exists to filter out hopeless cases at the threshold; it does not exist to enable a defendant to obtain a trial of contested issues on affidavits in advance of trial itself.

Applying that standard, and for the reasons elaborated below, the Court is unable to conclude that the present action is so plainly and obviously unsustainable as to fall within the narrow class of cases warranting summary disposal.

(ii) The alleged release: a question of construction within a contested matrix

The Defendant's case turns on the proposition that the letter dated 21 December 2022 effected an unconditional release. The Court accepts that, taken in isolation, the operative paragraph of that letter contains language naturally capable of being so understood. The phrase "are hereby released and discharged from any further obligations to meet the Profit Guarantee and Receivables Guarantee" is, on its face, the language of release; and the further statement that "we shall have no further claim whatsoever against each other" is, on its face, the language of mutual extinguishment.

But the question is not whether the words taken in isolation are capable of meaning what the Defendant says they mean. It is whether, read together with the contractual matrix to which they expressly refer, they are so unambiguous and so plainly operative on the undisputed materials that no rational tribunal could find otherwise. That question must be answered in the negative.

The release recorded in the 21 December 2022 letter is expressly tied to two anterior matters: first, an instrument identified as "the Agreement to Release PG"; and secondly, the deemed completion of the matters specified in Clause 4.2 of that Agreement. The release is said to take effect "in accordance with Clause 4.3 of the Agreement to Release PG", and only upon Completion under Clause 4.2 having been "deemed completed".

First, the very text of the letter creates an internal tension that the trial Court will be required to resolve. The letter recites that "Completion ... is deemed completed", but it does so at a time when, on the contemporaneous documents now before the Court, several of the matters that Clause 4.2 of the instrument exhibited as Exhibit B-1 to the affidavit affirmed on 31 March 2026 stipulates as conditions of "Completion" had not occurred. Clause 4.2, in terms, ties the deeming of Completion to the New Stakeholder providing written confirmation, together with supporting documents "as may be required by BINTAI", evidencing that the Escrow Share and the Escrow Cash had been transferred to a stakeholder on terms agreeable to BINTAI and RCSB. Rinani's contemporaneous letter of 21 December 2022 acknowledged that no new stakeholder had been appointed; the Defendant has deposed that no transfer of the 30,000,000 shares to Rinani has since been instructed; and the Defendant's own reply submissions accept that the share transfer was not in fact completed. Whether the Plaintiff is, on the proper construction of the documents, taken to have dispensed with these conditions, or whether the deeming language was issued upon a misunderstanding, or upon a different state of facts than now appears, is a question that cannot be answered on affidavit.

Secondly, the Directors' Circular Resolution of 14 December 2022, upon which the Defendant herself relies as the source of the Plaintiff's assent to her substitution, records in its preambular recitals that the Profit Guarantee and the Receivable Guarantee had "not been fulfilled by YEL". The operative paragraphs of that resolution further record that the Plaintiff's assent to release was "subject to", among other matters, the execution of a fresh profit guarantee with similar terms by Rinani and the execution of "an Agreement to Release for releasing YEL from all rights, obligations, responsibilities and liabilities ... and upon the terms and conditions of the Agreement to Release". The construction of those provisions, and the question whether the conditions to which the Plaintiff's assent was subject have been fulfilled, are matters that may turn on evidence as to the actual execution of a fresh guarantee, the terms agreed to by Rinani, and the subsequent conduct of the parties. None of these matters is capable of summary resolution.

Thirdly, the Defendant's position regarding the "Agreement to Release PG" itself merits attention. The Defendant initially appeared, in paragraph 5 of the affidavit affirmed on 10 March 2026, to deny the existence of the "Release Profit Guarantee Agreement". The Defendant has since clarified, in her affidavit affirmed on 22 April 2026 and her reply submissions, that she does not deny the existence of an Agreement to Release as such, but is unable to confirm whether the undated and unstamped instrument exhibited as Exhibit B-1 to the affidavit affirmed on 31 March 2026 is the same Agreement referred to in the 21 December 2022 letter. The point is not free from significance. On the Defendant's clarified position, the very document upon which the operative effect of the 21 December 2022 letter depends, and the very document from which the conditions of Clause 4.2 are extracted, is itself of uncertain identity and provenance. That uncertainty is not a basis for striking out; it is an additional reason why the construction and operation of the instruments must be resolved at trial.

Fourthly, the Plaintiff's pleaded allegation that the 30,000,000 shares were transferred, first to a company named Majestic Salute Sdn Bhd and thereafter into the Defendant's own name, remains live. The Defendant's answer is that the Plaintiff itself agreed, in the 21 December 2022 letter, to the Defendant holding the shares on trust for Rinani; and that the Plaintiff cannot now characterise the resulting state of affairs as "unauthorised". There is force in the observation that the Plaintiff did agree to the trust arrangement. But that observation does not address the further step pleaded by the Plaintiff — the transfer of the shares through Majestic Salute Sdn Bhd into the Defendant's own name. Whether the route by which the shares ultimately came to be registered in the Defendant's name was authorised, regular and consistent with the trust to which the Plaintiff agreed, is a discrete and contested question that cannot be resolved on affidavit.

The cumulative effect of these matters is that the alleged release cannot be characterised as plain and obvious. It is surrounded by genuine factual controversy as to (a) whether the conditions of Completion under Clause 4.2 were satisfied or dispensed with; (b) whether the conditions to which the Plaintiff's assent in the Directors' Circular Resolution was subject have been fulfilled; (c) the identity and authenticity of the Agreement to Release; and (d) the regularity of the dealings with the 30,000,000 escrow shares.

(iii) The limits of affidavit evidence and the application of Eng Mee Yong

The dictum of Lord Diplock in Eng Mee Yong v Letchumanan [1979] 2 MLJ 212 (Privy Council), invoked in support of the application, requires careful consideration. It is true that a judge confronted with affidavit assertions that are equivocal, lacking in precision, inconsistent with undisputed contemporary documents, or inherently improbable is not bound to treat such assertions as raising a triable issue. But Eng Mee Yong is not a charter for the judicial resolution, on affidavit alone, of contested questions of contractual construction supported on both sides by contemporaneous documents.

Here, the contemporary documents are themselves the subject of contest. The Defendant's reply submissions criticise the Plaintiff's denial of the validity, authenticity and legal effect of the Directors' Circular Resolution and the 21 December 2022 letter (paragraphs 3.7 to 3.9 of the Plaintiff's submissions in Enclosure 16) as bare and unparticularised, given that they are the Plaintiff's own documents. There is force in that criticism. The Plaintiff has not specified the manner in which its own documents are said to be invalid, inauthentic or legally ineffective, and a public listed company that genuinely repudiated its own documents might be expected to have taken steps to so signal at the time. Whether those denials survive cross-examination is, however, a different question — and is precisely the kind of question that a striking out application cannot answer. Eng Mee Yong authorises the Court to be sceptical of affidavit assertions; it does not authorise the Court to substitute the affidavit process for trial of the action.

(iv) Section 64 of the Contracts Act 1950 and waiver by conduct

The Court accepts the propositions of law derived from Kerpa Singh and Associated Pan Malaysia Cement. Section 64 of the Contracts Act 1950 enables a promisee to dispense with the performance of a promise, and no separate consideration or fresh agreement is required. So far as the law is concerned, those propositions are not in controversy.

The difficulty for the Defendant lies not in the law but in its factual engagement. Section 64 operates upon a dispensation that has in truth been made. Whether the Plaintiff made an unconditional dispensation, or made a dispensation that was conditional upon matters that have not been fulfilled, is the very question that the parties join issue upon. The argument framed in Chase Perdana that the parties' conduct may render an otherwise applicable condition inoperative is not a route around this difficulty. The doctrine in Chase Perdana depends upon a factual finding as to the parties' conduct. That finding is for the trial Court to make upon the evidence, not for this Court to make on affidavit.

Equally, the counter-principle reflected in Nga Sheau Sheau that non-fulfilment of a condition precedent may render an agreement non-binding depends upon the prior factual question whether a particular term operates as a condition precedent and whether it has been fulfilled. The proper construction of Clause 4.2, the identification of what its conditions in fact required, and the question whether those conditions were fulfilled or waived, cannot be determined except upon a full appreciation of the evidence.

The Court therefore declines to apply section 64 of the Contracts Act 1950 as the basis for summary disposal. The legal principle is one thing; its factual engagement is another. The latter, in this case, is for trial.

The pleaded claim for exemplary damages

The pleaded prayer for exemplary damages stands on a discrete footing. Big Man Management confirms that exemplary damages are not generally recoverable for breach of contract simpliciter; their availability depends upon the existence of a concurrent cause of action grounded upon a breach of statutory duty pleaded on the statement of claim. The Court of Appeal's analysis in Sambaga Valli identifies the categorical conduct that may support an award vindictiveness, malice, or contumelious disregard but does not displace the doctrinal requirement that the cause of action be capable of supporting the head of damages.

The Plaintiff's claim, as presently pleaded, is grounded in breach of the Deed of Guarantee and is essentially contractual. The Statement of Claim does not articulate a concurrent cause of action grounded upon a breach of statutory duty or upon any other independently actionable wrong of the kind that the Federal Court in Big Man Management identified as the proper foundation for an award of exemplary damages. On the pleadings as they presently stand, the prayer for exemplary damages would face significant difficulty at trial.

The proper course at this stage, however, is not the wholesale striking out of the action on this account. The principal claim enforcement of the profit guarantee survives independently of the exemplary damages relief. The continued viability of the principal claim makes the dismissal of the action as a whole untenable on this ground. Whether the prayer for exemplary damages should be persisted in, abandoned, or further pleaded, is a matter for the Plaintiff in due course. It is not, in itself, a reason to extinguish the entire action at the threshold.

(vi) The Counterclaim and Order 15 Rule 2(3) of the Rules of Court 2012

It has been observed that the Counterclaim is, by virtue of Order 15 Rule 2(3) of the Rules of Court 2012, a procedurally independent cause of action that would survive even the dismissal of the principal claim. That is correct, so far as it goes. It addresses the procedural consequences of striking out; it does not, however, supply a reason to strike out.

What is, in the Court's view, of more substantive significance is the content of the Counterclaim and its overlap with the matrix of facts upon which the principal claim depends. The Counterclaim alleges, among other matters, that the Plaintiff failed to procure banking facilities of RM5,000,000.00 said to have been required under Clause 4A.3 of the Share Sale Agreement, and that the value of the shares allotted to the Defendant has been diminished. These are matters bound up with the broader contractual matrix that the principal claim itself invokes. The Defendant has, by her own Counterclaim, invited the Court to determine substantive contractual disputes upon evidence at trial. That invitation, while not in itself dispositive of the striking out application, is consistent with the conclusion that the parties' disputes are properly to be tried, and tried together.

(vii) Whether the action is frivolous, vexatious or an abuse of process

There remains the question whether the action, if it discloses a recognisable cause of action, may yet be struck out as frivolous, vexatious or an abuse of process under Order 18 Rule 19(1)(b) or (d). For the reasons already given, the Court is unable so to characterise the present claim. An action grounded upon a deed of guarantee and seeking enforcement of a guaranteed sum, supported by pleaded allegations of unfulfilled conditions and disputed dealings with escrow property, is not on its face frivolous or vexatious. Whether the action will ultimately succeed at trial is a question wholly distinct from whether it ought to be tried at all.

The issues raised in this action — concerning the construction and operation of a series of inter-related instruments, the satisfaction or dispensation of conditions of Completion, the identity and effect of the Agreement to Release, and the regularity of the dealings with the escrow shares — are not amenable to summary resolution on affidavit. They require the calling of evidence, the production of contemporaneous documents in their full context, and the examination and cross-examination of witnesses.

The Statement of Claim discloses a recognisable cause of action upon a deed of guarantee. The contention that the Defendant has been released from that guarantee, however attractively presented, depends upon disputed factual premises and upon the construction of contractual instruments whose interaction is not free from difficulty. The authorities relied upon Eng Mee Yong, Chase Perdana and Nga Sheau Sheau each illustrates the difficulty rather than dispelling it. They illustrate, respectively, the limits of affidavit determination, the dependence of waiver-by-conduct on findings of fact, and the dependence of the condition-precedent doctrine equally on findings of fact. None of those authorities establishes that the present action is so plain and obvious as to be dismissed at the threshold.

The pleaded prayer for exemplary damages stands on weaker ground in the light of Big Man Management. That observation, however, justifies attention to that single head of relief in due course; it does not justify the dismemberment of the action at the threshold stage. The principal claim being maintainable, the entirety of the action must proceed to trial.

For the reasons set out above, the Court orders as follows:

The Defendant's application in Enclosure 8 to strike out the Plaintiff's Writ of Summons and Statement of Claim is dismissed;

Costs of the application are awarded to the Plaintiff in the sum of Rm 15,000; and

The action shall proceed to case management for directions in due course. Dated 28 May 2026 (MELAKA) Lawyer For Plaintiff : Datuk Shashi Kumar a/l Kannan Bersama Datin Shamini Devi a/p Dorasamy Tetuan Shashi Kannan & Partners Peguambela dan Peguamcara No.19-2 & 19-3 Jalan KPKS 6, Kompleks Perniagaan Kota Syahbandar, 75200 Melaka. Lawyer For Defendant : Encik See Kwong Yan Tetuan See Kwong Yan Peguambela dan Peguamcara No. 24A, Jalan SS22/21, Damansara Jaya, 47400 Petaling Jaya, Selangor Darul Ehsan.