Collin Wong Her Shenq v 1. Seng Fan Tien (NRIC No: 740912-01-5621) (JA-22NCC-10-01/2017)

AFFIN BANK BERHAD (COMPANY NO: 25046-T)

(Enclosure 11 – striking out) CHOO KAH SING Judicial Commissioner High Court Johor Bahru Date: 11.9.2017 Page 2 of 7 Introduction [1] Enclosure 11 is an application filed by the 2nd defendant to strike out the plaintiff‟s writ and statement of claim pursuant to Order 18 rule 19(1)(a), (b) or (d) of the Rules of Court 2012. [2] On 14.8.2017, this Court allowed the 2nd defendant‟s application. The reasons for the decision are set out as below. Brief Facts [3] The plaintiff has relied on the cause of actions of fraud and tort of conspiracy against the defendants, and in addition against the 2nd defendant, the plaintiff also pleaded negligence on the part of the 2nd defendant. [4] The salient facts of the plaintiff‟s case are that the plaintiff bought four insurance policies from the 2nd defendant between the period December 1993 and May 2005. [5] Sometime between the period January 2008 and February 2010, three of the insurance policies were used to take out a loan from the 2nd defendant, and one of the insurance policies was terminated/surrendered. [6] The crux of the plaintiff‟s claim is that at all material times he did not take out any loan from the 2nd defendant using his insurance policies nor did he surrender any of them. The plaintiff only came to know about the status of his insurance policies on 5.1.2011 when he went to the 2nd Page 3 of 7 defendant with the intention to take out a loan using his existing insurance policies. On the same day, the plaintiff immediately lodged a complaint with the 2nd defendant (see Affidavit Helen Quat dated 15.5.2017 – exhibit „GE-1‟ [encl.12]). On 21.1.2011, the 2nd defendant replied to the plaintiff and explained to the plaintiff what had happened to his insurance policies. The plaintiff was not satisfied with the 2nd defendant‟s explanation and proceeded to lodge a police report. [7] After a lapse of six years since the date of discovery, i.e. on 5.1.2011, the plaintiff took out this civil suit against the defendants on 17.1.2017. [8] The pith of the 2nd defendant‟s application to strike out the plaintiff‟s claim is based on the issue of time bar. The 2nd defendant‟s counsel submitted that pursuant to s.6 of the Limitation Act 1953, any action founded on tort the limitation to file an action is six years from the date the cause of action arose. The counsel for the 2nd defendant contended that the cause of action (tort of conspiracy) in the plaintiff‟s claim had arisen during the period between in the years 2008 and 2010 when the loans were taken out and upon the surrender of one of the insurance policies. The counsel for the 2nd defendant further contended that the plaintiff only took out this action on 17.1.2017 and that it is crystal clear the 6 years limitation period has set in since the cause of action arose between the period 2008 and 2010. Hence, the plaintiff‟s action is time-barred. The Finding of this Court Page 4 of 7 [9] The events revolving the timelines in the suit are not contested, therefore, this Court is of the considered view it could determine the issue as to when the plaintiff‟s cause of action arose without having to go through a trial to determine the same. [10] The plaintiff‟s claims are premised on tort of conspiracy and negligence which are subset of the law of tort. It is trite law that an action which is based on tort, the cause of action arises when the plaintiff suffers damage (see Ambank (M) Bhd v Abdul Aziz Bin Hassan & Ors [2010] 3 MLJ 784). [11] In this instant case, the plaintiff suffered damage when his insurance policies had been fraudulently used to take out a loan and surrendered by the agent of the 2nd defendant. The agent who committed the fraud action was the 1st defendant, the plaintiff has alleged. Since the time of damage could be determined which was during the period between the years 2008 and 2010. It can be said that the cause of action arose sometime between in the years 2008 and

When the writ was filed on 17.1.2017, it was after six years calculated from the year 2010 when the last event had occurred. Even if time had started to run on the last day of year 2010, i.e. 31.12.2010, the six years limitation period would have set in on 1.1.2017. [12] This Court could not agree with the plaintiff‟s counsel‟s submission that the plaintiff had suffered damage only when he was officially informed of the position of his policies insurance on 28.7.2015. This Court is of the considered view the latest date when it could be said the plaintiff suffered damage was on 5.1.2011 when the plaintiff was told that that he could no longer take out any loan from his insurance policies. Page 5 of 7 [13] Regardless whether the cause of action accrued on 31.12.2010 or 5.1.2011, the limitation period had set in when the plaintiff‟s writ was filed on 17.1.2017. [14] The plaintiff‟s counsel has submitted that the plaintiff was not in the position to file his case without having all the proper information on 5.1.2011, therefore, the cause of action could not have begun. This Court could not agree with the plaintiff‟s counsel‟s submission. On 28.1.2011, the plaintiff had lodged a comprehensive police report (see exhibit „GE-2‟ encl. 12) detailing all the information which this Court is of the considered view are sufficient to make out a claim in the nature of fraud and tort of conspiracy against the defendants. In fact, all the three defendants were named in the police report. Despite being possession of all those information, the plaintiff did not take out a civil suit against the defendants until after six years had lapsed from the day he discovered the status of his insurance policies. The plaintiff had taken a lackadaisical attitude toward his claim against the defendants. [15] With regard to the cause of action of fraud, the learned counsel for the plaintiff submitted that the cause of action has been postponed by operation of s. 29 of the Limitation Act 1953 which permits the period of limitation of 6 years to start running when the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. The learned counsel for the plaintiff further submitted that the relevant documents pertaining to the events that transpired in relation to the insurance policies were only given to the plaintiff in piecemeal after 5.1.2011. Therefore, the limitation period could not have begun to run on 5.1.2011. This Court is of the considered view that even though the documents in relation to the events were given over a period of time, the reading of Page 6 of 7 s.29 of the Limitation Act does not extend to cover a situation where discovery of information in stages could postpone the limitation period. The wordings “…the period of limitation shall not begin to run until the plaintiff has discovered the fraud….” in s.29 of the Limitation Act 1953 envisage the moment the plaintiff discovers the fraud, and not the continued discovery of more information of the fraud, as the starting point for the limitation period to run. [16] The counsel for the plaintiff also submitted that the 1st defendant, being a bankrupt, has through the insolvency officer informed the court that the 1st defendant is not defending the plaintiff‟s claim, therefore, the plaintiff‟s allegations of fraud and conspiracy against the defendants has been proven. In addition, the 3rd defendant did not plead limitation period in its defence. Hence, the 2nd defendant‟s application ought to be dismissed, the counsel for the plaintiff submitted. [17] This Court could not agree with the plaintiff‟s counsel‟s submissions in relation to the 1st and 3rd defendants‟ positions. The fact the 3rd defendant did not plead limitation could not mean the 2nd defendant‟s pleaded defence of limitation ought to fail. Likewise, if there is any admission by the 1st defendant of the plaintiff‟s claim, it does not preclude the 2nd defendant from relying on the defence of limitation. The issues are distinct and ought to be dealt with separately. The 2nd and 3rd defendants have pleaded denial of such conspiracy, that suffices to contradict the plaintiff‟s claim, and therefore, the burden lies on the plaintiff to prove his case on a balance of probabilities. [18] It is trite that “an action brought outside the limitation period to commence the action can be struck out for being frivolous, scandalous Page 7 of 7 and vexatious and also an abuse of the process of the court” (see Malaysian Civil Procedure 2013, p. 244; see also cases cited: Tan Sri Dato’ Eric Chia Eng Hock v NKK Corp (Japan) [2005] 2 AMR 343; Lim Lek Yan @ Lim Teck Yam v Yayasan Melaka [2012] MLJU 546). Conclusion [19] Based on the above reasoning, this Court allowed the 2nd defendant‟s application to strike out the plaintiff‟s writ and statement of claim on the grounds under Order 18 rules 19(1)(b) and/or (c) of the Rules of Court 2012. This Court further ordered that the plaintiff to pay costs of RM2,000.00 to the 2nd defendant. -SIGNED- ……………………………………….. (CHOO KAH SING) Judicial Commissioner High Court Johor Bahru Plaintiff‟s counsel : Desmond J Louis Tetuan Imran, Shahareen & Co. 2nd Defendant‟s counsel : Andrew Teh (Sara Anthony with him) Tetuan Wong Lu Peen & Tunku Alina