Cky Packaging Services v Freight Mark (M) Sdn Bhd (BA-12ANCvC-42-07/2025)

This is an appeal against the decision of the learned Sessions Court Judge allowing the defendant’s application to strike out the writ pursuant to Order 18, Rule 19, Rules of Court 2012.

On 9.10.2025, I allowed the plaintiff’s appeal with costs.

Based on the statement of claim, the plaintiff’s claim against the defendant is for the sum of RM475,671.12, being the outstanding amount due for services rendered, including repacking, carton picking, loading and unloading of containers, and labor supply, which the plaintiff provided to the defendant. The particulars of the outstanding balance are set out in Appendix A in the Statement of Claim. The plaintiff issued a letter of demand dated 15.10.2024, but to date, the defendant has refused to pay the outstanding sum.

In the statement of defence, the defendant pleaded that – a) It was an express term between the parties that the plaintiff would carry out the works pursuant to the defendant’s instruction. 3 b) The plaintiff would issue invoices to the defendant for work duly and properly completed. Each invoice must set out the container number and type, the type of carton picking, the defendant’s customer reference number, the quantity repacked, and the repacking instruction reference number. c) The particulars contained in the invoices would be verified by the defendant against the particulars recorded in the defendant’s system before payment is made.

The following issues are for determination in this appeal: i. Whether the learned SCJ erred in finding that the plaintiff has no reasonable cause of action against the defendant. ii. Whether the claim is scandalous, frivolous, or vexatious. iii. Whether there is an abuse of the process of the Court

The plaintiff submits as follows – 4 a) All works completed were set out in the invoices issued to the defendant; b) At all material times, the defendant allegedly never raised any issues in relation to those invoices. c) During the debt recovery process, the defendant alleged that the plaintiff’s invoices had been misplaced and requested certified true copies. d) The defendant frequently sought to avoid responsibility by claiming that documents from one employee had not been forwarded to another for the preparation of payment.

The defendant contends in the affidavit in support of the striking out application that the plaintiff’s claim is not based on a running account concept. The alleged invoices must be treated as independent and distinct from one another, and not as part of a continuous series of transactions typically recorded in a running account.

The defendant further avers that – a) There is no debit and credit information in Lampiran A, except for the purported accumulated outstanding amount of the alleged invoices. 5 b) Each payment made by the defendant was directed specifically toward a particular invoice and not made on account of a general balance, as corroborated by the plaintiff’s own documents. c) In business dealings, a running account is a continuous record of transactions between two parties—typically a seller and a buyer. It tracks a stream of invoices issued and payments made over time, with all activity reflected in a single account balance rather than settling each transaction individually. d) The plaintiff’s writ and statement of claim are time-barred under the statute of limitations.

The defendant relies on the case of Ekuiti Setegap Sdn Bhd v Plaza 393 Management Corp (established under The Strata Titles Act 1985) [2018] 4 MLJ 284, where the Court of Appeal held that –

Before we proceed with the main issues, we wish to state at the outset that we find no appealable error in respect of the learned judge’s finding that the plaintiff’s claim is based on a running account. In Wembley Industries Holdings Bhd, it was held: … a running account is a single account and not a composite of its various parts. A payment made on account of a running account is in respect of the 6 entire outstanding balance, with the result that time is extended for the whole of the debt. It appears, therefore that a running account will become statute barred only if more than six years elapse between the supply of the last article under it and the last payment on account.

In deciding whether to allow or dismiss the appeal, this Court is guided by Order 55 of the Rules of Court 2012 (the Rules). The Rules provide that such an appeal is to be by way of rehearing based on the appeal records.

It is settled law that an appellate court should be slow to disturb the finding of the trial judge unless the judgment is based on a wrong premise of fact or of law, as contemplated in Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] CLJU

[12] The provisions on striking out pleadings are set out in O. 18 r. 19(1) of the Rules, as follows: Striking out pleadings and endorsements

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – a) it discloses no reasonable cause of action or defence, as the case may be; b) it is scandalous, frivolous or vexatious; c) it may prejudice, embarrass or delay the fair trial of the action; or d) it is otherwise an abuse of the process of the Court and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. (emphasis added) [13] In Tan Wei Hong & Ors v Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425, the Federal Court laid out the tests for striking out application under O.18 r.19 of the Rules as adopted by the Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 as follows – The tests for striking out application under O.18 r.19 of the ROC, as adopted by the Supreme Court in Bandar Builders are, inter alia, as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O.33 r.3 of the ROC; and

the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [14] The Court of Appeal in Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd & Ors [1996]1 CLJ 257 held that – The discretionary power to dismiss an action summarily under O.18 r.19 of the RHC and under the inherent jurisdiction of the court is a drastic power which should only be exercised in plain and obvious cases. When a case is argued on the affidavit evidence available, it must become plain and obvious that the case has no chance of success. (emphasis added) ANALYSIS AND FINDINGS Issue 1: Whether the learned SCJ erred in finding that the plaintiff has no reasonable cause of action against the defendant. [15] In Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, the well-established principle is that a claim may be struck out where it is “obviously unsustainable.” [16] The defendant contends that the plaintiff failed to show that the claim falls within either of the two exceptions in section 27 of the Limitation Act. Therefore, no fresh cause of action accrues for each of the invoices listed in Appendix A. Furthermore, in the reply to the defence, the plaintiff has pleaded that the defendant paid part of the outstanding sum on 4.1.2021. According to the plaintiff, the defendant made the payment even after the limitation period had expired. [17] I find no merit in the defendant’s contention that the statement of claim is obviously unsustainable because the plaintiff has demonstrated the existence of a bona fide triable issue, particularly on the nature of the account, the conduct of the parties, and the issue of limitation. I also find that the defendant’s own pleading establishes numerous disputed questions of fact, including the nature of the parties' commercial relationship. [18] In the present case, the learned SCJ concluded that the commercial relationship between the parties is never based on the concept of running account. Having reviewed the records of appeal and the submissions by the learned counsel for the appellant and the respondent, this Court concludes that there are two conflicting versions between the parties. [19] The plaintiff alleged that the claim is for a running account, as evidenced by the issuance of a document on pages 134-136 of Enclosure 5 (PDF 34-36). The relevant question of fact to be ventilated at trial is whether the dealings constituted a running account, whether the invoices were verified and accepted, and when the limitation accrued. [20] In this respect, I am of the opinion that the issue of the existence of a running account should be ventilated by witnesses during trial and not disposed of summarily. [21] This Court finds that the learned Sessions Court Judge erred in allowing the defendant’s application under Order 18 rule 19 of the Rules. Issue 2: Whether the claim is scandalous, frivolous, or vexatious. [22] This Court is guided by the principle in Chung Khiaw Bank Ltd v. Tio Chee Hing [1987] 1 CLJ 531; [1987] CLJ (Rep) 81; [1987] 2 MLJ 701, where the Supreme Court referred to the case of Re Vernazza [1959] 2 All ER 200, which held the following: ..in determining whether proceedings were vexatious the court must look at the whole history of the matter, not solely at the question whether the pleadings had disclosed a cause of action. [23] This Court also considers the defendant’s averment of a history of prolonged discussions between the parties from 2010 to 2017. These facts alone weigh against summary disposal and raise disputed issues that require trial. Issue 3: Whether there is an abuse of the process of the Court [24] In Jasa Keramat Sdn Bhd & Anor v. Monatech (M) Sdn Bhd [1999] 4 CLJ 533; [1999] 4 MLJ 637, Gopal Sri Ram JCA (later FCJ) held that – Since the circumstances in which the court’s process may be abused are varied and numerous, the categories of such cases are therefore not closed. Whether the institution of an action or its continuation or a step taken therein amounts to an abuse of process depends upon particular and individual circumstances. [25] Guided by the authorities above, I find that the circumstances of the commercial relationship between the parties, including whether the dealings between the parties constituted a running account or separate transactions and whether invoices formed part of one continuous account, are clearly questions of fact. Therefore, this Court finds that the defendant failed to show that the plaintiff’s claim is an abuse of the court process. CONCLUSION [26] Based on the reasons above, I am satisfied that the learned SCJ is plainly wrong in striking out the plaintiff’s claim. Accordingly, the plaintiff’s appeal is allowed, with costs awarded in the sum of RM3,000.00, subject to allocator. Dated 26 December 2025. Signed ……………………………………… Hazizah binti Kassim Judicial Commissioner High Court of Civil (NCvC10) Shah Alam, Selangor

For the appellant/ plaintiff : Lee Fey Yee Tetuan Azam-Malek & Soh (Klang, Selangor)

For the respondent/defendant : Hasmaliza Othman & Sun Cheng Hoe Tetuan Iza Ng Yeoh & Kit (Wilayah Persekutuan Kuala Lumpur)