Bsg Jayaone Venture Sdn Bhd v 1. ) Bina Tetap Tiara Sdn Bhd (BA-22NCvC-137-03/2021)

1.

BINA TETAP TIARA SDN BHD (COMPANY NO. 693798 – T)

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4.

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LUK TECK HUA RISING F & B (SUBANG) SDN BHD COMPANY NO. 1373085 W) 28/07/2023 23:44:17 BA-22NCvC-137-03/2021 Kand. 118 S/N gS8u6QzE1k6kZl4ho2aTyg JUDGMENT (ENCLOSURE 48 – APPLICATION BY THIRD DEFENDANT) [1] An order is sought from this court by the third defendant (D3) to have the claim by plaintiff against him to be struck out as it is claimed, there is not reasonable cause of action to sustain a claim against him. The application is made pursuant to Order 18 rule 19 of the Rules of Court 2012 (ROC). Further, it is contended, D3 enjoys immunity from civil suit pursuant to section 107 (3) of the Subordinate Courts Act 1948 (Act 92) as he was merely carrying out his official duties as a bailiff of the court. [2] D3 was appointed by the court to execute a writ of distress dated 6.7.2020. On 10.7.2020, D3 went to the premises at unit No. G.017 & G.018, Ground Floor, The Square, Jaya One, No.72A, Jalan Universiti, Section 13, 46200 Petaling Jaya Selangor, to execute the said writ. [3] Consequently, there was a date for public auction on 24.7.2020, which was put off as the plaintiff had filed an application to set aside the order for writ of distress made on 6.7.2020. The application was dismissed by the sessions court judge (SCJ) on 2.10.2020. As there S/N gS8u6QzE1k6kZl4ho2aTyg was no stay of execution of the writ of distress, on the same date, D3 had issued a notice of sale for purposes of public auction which is supposed to take place on 5th day of the year 2020 at 2 pm, without stating the month. On 5.10.2020 a public auction was held for the sale of the distrained properties. As per the record, the bidders were fourth, fifth, sixth and seventh defendant. The fourth defendant, D4 was the successful bidder who bought the distrained properties at a price of RM20,000. After the public auction, D3 on 12.10.2020 issued another notice of sale dated 2.10.2020, belatedly, stating the public auction for the sale of the distrained properties would be held on 5.10.2020. [4] But the turn of events demonstrates that there was an appeal to the High Court against refusal by the SCJ to have the writ of distress set aside. The said appeal was allowed on 9.2.2022, thus the writ of distress issued by the sessions court was in fact set aside. Thus, it is claimed by D3, the cause of action against him, if any, has become academic. But, it has to borne in mind, by that time, the execution had taken place, and plaintiff has suffered damage, hence its claim to this court. [5] Crux of the case by plaintiff against the first and second defendant (D1 and D2) is that both D1 and D2 who were owners of the S/N gS8u6QzE1k6kZl4ho2aTyg premises rented to the plaintiff, have not received rentals as agreed by parties, which progressed into a distress action against the plaintiff. D3 being bailiff of the court assisted D1 and D2 to execute the writ of distress on the premises occupied by plaintiff. The plaintiff is dissatisfied with the train of events which led to the claim for rentals as well as the mode and manner by which the properties were distrained during execution. [6] It is alleged that D3 when executing the said writ of distress did not comply with the salient provisions of the Distress Act 1951 (Act 255). It is also alleged D1 and D2 had conspired with D3 when executing the said writ. [7] The Senior Federal Counsel (SFC) appearing for D3, had relied on a legal provision providing for immunity from civil suit against the bailiff D3, pursuant to section 107 (3) Act 92. It renders the following: Protection of judicial officers

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No sheriff, bailiff or other officer of the court charged with the duty of executing any judgment, order or warrant of distress, or of attaching any property before judgment, shall be liable to be sued in any civil court in respect of any property seized by him, or in respect of damage caused to any property in effecting or attempting to effect the seizure, unless it shall appear that he knowingly acted in excess of the authority S/N gS8u6QzE1k6kZl4ho2aTyg conferred upon him by the writ, warrant or order in question, and he shall not be deemed to have acted knowingly in excess of his authority merely by reason of knowing of the existence of a dispute as to the ownership of the property so seized. (emphasis is mine) [8] Essentially it is contended before me that the bailiff as an officer of the sessions court was complying with the law when he executed the writ of distress at the instance of D1 and D2. Thus, he enjoys immunity from any form of civil suit against him as he was carrying out his official duty at the material time. [9] But, what is missed by the SFC is that there is an exception to section 107 (3) as highlighted above. The bailiff does not enjoy absolute immunity but limited in nature, if he knowingly acted in excess of the authority conferred upon him by the writ of distress. Therefore, there can be instances where a bailiff of the court may have acted in excess of his authority. But, to have acted knowingly in excess of his authority merely by reason of knowing of the existence of a dispute as to the ownership of the property so seized, does not take away his immunity. [10] Hence, the material issue in the case of plaintiff against D3, is if D3 was carrying out his duty in excess of his authority under the law. In that respect, allegations against D3 are whether the following took place: S/N gS8u6QzE1k6kZl4ho2aTyg • D3 acted contrary to section 8 (d) Distress Act 1951 (Act 255) by seizing goods in possession of the plaintiff for the purpose of being carried, wrought, worked up or otherwise dealt with in the course of their ordinary trade and business. • D3 failed, refused or neglected to post the notice of seizure and an inventory at some conspicuous place at the demised premises as required under section 9 of Act 255. • D3 failed, refused or neglected to give the plaintiff the notice of seizure and an inventory as required under O46 r 16 ROC. • D3 failed, refused or neglected to annex an inventory to the notice of seizure as required under section 9 of Act 255, O75 r 4 ROC and Form 91 Appendix A to ROC. • D3 failed, refused or neglected to comply with the requirements of O46 r 23 read together with O75 r 6 ROC in issuing the 1st impugned notice of sale dated 2.10.2020 by failing to state the month of the intended sale. • D3 acted contrary to O46 r 23 ROC read together with O75 r 6 ROC by issuing the 2nd impugned notice of sale dated 2.10.2020 after the sale had been completed. • D3 failed, refused or neglected to post a notice of sale on the notice board of the Registry and so far, as practicable at the place S/N gS8u6QzE1k6kZl4ho2aTyg of the intended sale 7 days before the sale as required under O46 r 23 read together with O75 r 6 ROC. • D3 failed, refused or neglected to publicly advertise the sale 2 days before the date of sale as required under O46 r 24 ROC. • D3 wrongfully distrained movable properties of an excessive and unreasonable quantity. • What is the actual value of the movable properties seized and distrained by D3 during the execution of the writ of distress. • D3 had knowingly acted in excess of the authority conferred upon him. • D3 had failed to identify all the distrained properties in the inventory in his report. • D3 had failed to exercise a reasonable and honest discretion in estimating what the distrained properties would realise at auction. • The execution of the writ of distress was irregular and wrongful. • D3 was negligent in the execution of the writ of distress. • D3 was at all material times in the course of executing the writ of distress an agent of D1. S/N gS8u6QzE1k6kZl4ho2aTyg • There is a co-existence of an agreement with an overt act between D1 to D8 or any or more together with an intent to injure the plaintiff. [11] The above issues entail conflict of material facts on the pleadings which could only be determined after a full trial whereby D3 is expected to adduce evidence on the execution of the writ of distress by him, and when he would be cross-examined on the issues raised. At this stage of proceedings, the said issues could not be resolved vide affidavit evidence. Moreover, D3 has essentially relied on the immunity provision under section 107 (3) Act 92, when the provision has its exception. Premised on the material facts and issues raised by plaintiff, it is prima facie apparent the exception is applicable and it is for D3 to proffer contrary evidence or rebuttal evidence to demonstrate his defence that he did not at all material time acted in excess of the authority conferred upon him by the writ of distress. The evidential burden is on him. It is also the law that protection under section 107 (3) Act 92 does not avail D3, as bailiff who knowingly acts in excess of authority conferred upon him by the writ of distress. (See: Interkol (M) Sdn Bhd v Bandar Utama City Promenade Sdn Bhd (1995) 5 CLJ 376 at 384). D3 may have acted as an agent of the execution creditor but he has taken an active part S/N gS8u6QzE1k6kZl4ho2aTyg in the actual execution of the writ of distress. When taking his role as bailiff, he is bound by Act 255 and ROC when executing the writ of distress. Thus, he is bound to know the law, and ignorance of the law is no excuse. There is no bar to sue D3 for wrongful execution if it is done in breach of the law and procedure governing the execution process, which is so found in the exception to section 107

Act 92. (See also the persuasive authority - South East Enterprises (Singapore) Pte Ltd v Hean Nerng Holdings Pte Ltd and another (2013) SGCA 25). [12] Reliance by the SFC on the immunity provision is preposterous, as based on the material facts and issues alluded to above, D3 is said to have breached the law and procedure when executing the writ of distress, namely, section 8 (d) and (9) of Act 255; O46 rule 16, 23, 24 ROC; O75 rule 4 and 6 ROC; Form 91 of Appendix A to ROC. If that is so, could he enjoy immunity from civil action against him. That per se is a nagging issue necessitating viva voce evidence, if he had in fact acted in excess of his authority under the law, when enforcing the writ of distress. [13] The material facts and issues averred against D3 is consistent with the plaintiff’s pleaded causes of action which are: S/N gS8u6QzE1k6kZl4ho2aTyg • Irregular and wrongful distress in that D3 has acted contrary to the law and non-compliance with the procedure applicable to execution of a writ of distress pursuant to Act 255 and ROC; • Negligent in the execution of the said writ; • Breach of statutory duties when executing the said writ; • Agency in that, D3’s assessment of value of distrained properties was agreed by D1’s representative; • Conspiracy in that D3 and D1 had caused the distrained properties to be assessed at RM20,000 which they well knew was far below their value. It is settled law, when this court hears a striking out application under O18 rule 19 ROC, all averments and allegations in the statement of claim shall be presumed to be true. (See: Mooney v Peat, Marwick, Mitchell & Co) (1967) 1 MLJ 87). And this court is duty bound to consider only the pleadings for the purpose of determining if the statement of claim discloses a reasonable cause of action and the prevailing test is whether on the face of the pleading, this court is prepared to say the cause of action is obviously unsustainable. (See: New Straits Times (Malaysia) Bhd v Kumpulan Kertas Niaga Sdn Bhd (1985) 1 MLJ 226 FC). Obviously, premised on the material facts and issues raised, causes of action by the plaintiff against D3 S/N gS8u6QzE1k6kZl4ho2aTyg is sustainable. The facts and issues raised necessitates an open court trial. Moreover, the claim by plaintiff against D3 which is premised on irregular and wrongful distress; negligence; breach of statutory duty; agency and conspiracy entail questions of fact and law, which could only be determined at a trial proper and not vide summary striking out procedure. It is so apparent that D3 does not meet the threshold requirement of an obvious and unsustainable case for the writ and statement of claim against him to be struck out, after having considered the quality of the claim, material facts, issues, points of law surrounding the claim as disclosed in the statement of claim by the plaintiff. (See: oft quoted authority – Bandar Builder Sdn Bhd v United Malayan Banking Corporation

3 MLJ 36; Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd (2013) 5 MLJ 1). On that premise, application by D3 to strike out the plaintiff’s writ and statement of claim against him is dismissed with costs of RM5000. [14] Furthermore, the SFC who is representing D3 had agreed that issues in relation to negligence, breach of statutory duty, agency and conspiracy are to be tried. (See: enclosure 53, exhibit ‘B2” to the affidavit in reply by plaintiff). S/N gS8u6QzE1k6kZl4ho2aTyg [15] Recent amendment to the Courts of Judicature Act (Act 91) is to limit the right to appeal from this court to the Court of Appeal (COA) in civil cases where this court has dismissed an application to strike out a writ and statement of claim, so that trial of the case at this court will proceed swiftly and not derailed because of an appeal, as lodged by D3. [16] Amendment to section 68 of Act 91, took effect on 1.10.2022. The legislature in its wisdom has found it proper to limit the right to appeal to the COA, on such matters, as the entire case is delayed because of the act of D3 to appeal at the expense of the right of the plaintiffs to mount their claim against him premised on a conceivable cause of action. (See: Explanatory Statement 8 to the Amendment Bill to Act 91). It is axiomatic, justice delayed is justice denied. This case has been pending in the court since 28.4.2021 and yet to be fixed for trial, because of the myriad of interlocutory applications and a series of case management. Right to appeal for D3 is not lost, as at the end of the entire trial, if the decision is unfavourable to him, he could appeal to the COA. Thus, D3 is not deprived of his rights in this case, as it is for him to defend his case during the trial and to seek an appropriate order, if the evidence available favours him. S/N gS8u6QzE1k6kZl4ho2aTyg The issue on immunity from civil suit could also be raised during the trial for determination by the court. Application to strike out claim dismissed, trial of case to proceed. Dated 28 July 2023 SGD Muniandy Kannyappan Judge, High Court. Syariah Shafie, Senior Federal Counsel for and on behalf of D3, of the Attorney General Chambers. Wong Chiang Kiat together with Cheah Kha Mun, counsel for plaintiff, of Messrs Wong Kian Kheong. S/N gS8u6QzE1k6kZl4ho2aTyg