Dato' Sia Ah Guan v Kek Lye Kheng (BA-23NCvC-42-07/2025)

KEK LYE KHENG

WINSON KEK CHUN SEAN

WINNIE KEK JIA YING (NO. K/P: 000630-14-0690) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 10 – The Second and Third Defendants’ Application Under Order 18 Rule 19(1) Rules of Court 2012) 16/02/2026 12:34:23 BA-23NCvC-42-07/2025 Kand. 54 S/N z7/ymnhOg06RGjtc8SAg8w INTRODUCTION [1] This is an interlocutory application by the second and third defendants to strike out the plaintiff's claim pursuant to Order 18 Rule 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of Court 2012 through Enclosure 10. [2] On 3.12.2025, this Court allowed the second and third defendant's application. The plaintiff is dissatisfied with the decision and has appealed to the Court of Appeal. RELEVANT FACTS [3] The plaintiff, a Malaysian citizen, met the first defendant at a wedding on 7.10.2022. The first defendant is a retiree and the father of the second and third defendants. The second defendant is a businessman in the internet technology sector and is employed by Aramasa Kontrak Sdn Bhd (AKSB). The third defendant is undergoing training in chambers at a law firm. [4] On or about 18.7.2023, the first defendant offered the plaintiff an investment scheme promising returns. The plaintiff agreed and withdrew RM1,000,000.00 in cash, which was paid to the first defendant on behalf of the AKSB. After 18.7.2023, the plaintiff was promised their first dividend return in August 2023. [5] From 7 September 2023 until 20 December 2024, five dividend payments were made to the plaintiff, totaling RM88,907.00. S/N z7/ymnhOg06RGjtc8SAg8w [6] According to the plaintiff, after receiving RM10,000.00 on 21 November 2023, the plaintiff frequently contacted the first defendant requesting the return of the investment. The first defendant executed a Debt Settlement Agreement promising repayment of the plaintiff's money within three years. [7] Following the dividend payment of RM88,907.00, the plaintiff no longer received any further dividend payments and alleged that the defendants employed fraudulent tactics by portraying themselves as honest and trustworthy professionals. The plaintiff seeks an order from this Court for the return of RM1 million, together with general and exemplary damages, interest, and costs against the defendants. THE CAUSE PAPERS [8] The following is the cause paper related to the second and third defendant's application, as set forth in Enclosure 10: a) Writ of Summons and Statement of Claim dated 30.7.2025 (Enclosure 1 & 2); b) Statement of Defence dated 19.8.2025 (Enclosure 5); c) Notice of Application by the second and third defendants (Enclosure 10); d) Affidavit in Support sworn by Winnie Kek Jia Ying on 29.9.2025 (Enclosure 12); e) Affidavit in Reply sworn by Dato’ Sia Ah Guan on 22.10.2025 (Enclosure 16); S/N z7/ymnhOg06RGjtc8SAg8w f) Notice of Intention to Use Affidavit by the plaintiff dated 23.10.2025 (Enclosure 17); and g) Affidavit in reply of the second and third defendants sworn by Winnie Kek Jia Ying dated 5.11.2025 (Enclosure 19). [9] The second and third defendants assert that the plaintiff has no cause of action against them under the Investment Agreement dated 18.7.2023, entered into between the plaintiff and Aramas Contract Sdn Bhd. S/N z7/ymnhOg06RGjtc8SAg8w [10] According to the second and third defendants, the RM1 million investment by the plaintiff was intended for the AKSB company. In addition, the second and third defendants refer to the Debt Settlement Agreement entered into between the plaintiff and the first defendant on 17.1.2023. The second and third defendants are clearly not parties to these agreements. APPLICABLE LAWS [11] The legal principles governing the striking out of pleadings are well established. Order 18 Rule 19(1) of the Rules of Court (Amendment) 2012 states: Striking out pleadings and endorsements (O. 18, r. 19) 19.

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—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, S/N z7/ymnhOg06RGjtc8SAg8w and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. [12] The Supreme Court in the case of Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 decided – The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled, ft is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86 , p. 91), and 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” (Attorney-General of Duchy of Lancaster v. L &N.W. Ry. Co. [1892] 3 Ch. 274 , CA). ISSUES TO BE DECIDED [13] The key issue for this Court to determine is whether the plaintiff has a valid cause of action against the second and third defendants. S/N z7/ymnhOg06RGjtc8SAg8w ANALYSIS AND FINDING Whether the plaintiff has a valid cause of action against the second and third defendants [14] The doctrine on privity of contract is clear. A person who is not a party to a contract has no right to enforce a contractual right. In Boustead Naval Shipyard Sdn Bhd v Dynaforce Corp Sdn Bhd [2015] 1 MLJ 284, it was held that – [63] The law is clear. A person who is not a party to a contract has no right to sue on a contract (see Kepong Prospecting Ltd & Ors v Schmidt [1968] 1 MLJ 170 (PC); [1967] 2 PCC 465 (PC); and s 2(d) of the Contracts Act 1950; Oversea Chinese Banking Corporation Ltd v Woo Hing Brothers (M) Sdn Bhd [1992] 2 MLJ 86 (HC); and Badiaddin bin Mohd Mohidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (FC)). … [70] As an established principle of contract law, the common law doctrine of privity of contract stands for the simple proposition that, ‘no one but the parties to a contract can be bound by it or entitled under it’ (Greenwood Shopping Plaza Ltd v Beattie [1980] 2 SCR 228, at p [229]. S/N z7/ymnhOg06RGjtc8SAg8w [15] Likewise, a party bound by the contract may not bring claims against anyone who is not a party to the agreement. The Court in Ong Thean Chye & Ors v Tiew Choy Chai & Anor [2010] 3 MLRA 181 held that - [1] The 1st appellant and the 2nd appellant were not parties to the document. The document was issued only by the 3rd appellant. There was no privity of contract between the respondents and the 1st and 2nd appellants. Hence, the respondent had no cause of action against them. [16] This Court also refers to the case of Kurdamai Construction and Engineering Sdn Bhd v Innoseven Sdn Bhd & Ors [2015] 1 MLRA 405, which was held as follows – The law of contracts was codified and well-established, and it was not for the courts to legislate by introducing legal rights against those who were not party to the contract between the appellant and its main contractor. [17] In Tan Poh Yee v. Tan Boon Thien & Other Appeals [2017] 3 CLJ 569 the Court held that – [18] The fundamental principle of law on this point has been constantly followed and repeated by our courts that only a party to a contract can sue on it S/N z7/ymnhOg06RGjtc8SAg8w and only the parties to a contract have enforceable rights and obligations under such contract. We may categorically state, as an extension to this principle, that no stranger to the consideration can take advantage of a contract, although made for his benefit… [18] This Court holds that the plaintiff has no locus standi to bring this suit against the second and third defendants, as there is no privity of contract between them. [19] Having perused the Statement of Claim, this Court agrees with the defendants that the plaintiff pleaded insufficient particulars of fraud and mere general allegations of fraud against the second and third defendants. The Court of Appeal in Wong Yew Kwan v. Wong Yu Ke & Anor [2010] CLJ 703 referred to the case of Wallingford v. Mutual Society [1880] 5 App Cas 685, which states – There is the question of fraud upon which I said I should touch in one moment. Now I take it to be as settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in the defence of a suit. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that S/N z7/ymnhOg06RGjtc8SAg8w evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest. [20] Therefore, this Court is bound to follow the principle in Wong Yew Kwan v. Wong Yu Ke & Anor (supra) that the plaintiff's failure to particularise the fraud allegation in this case was clearly fatal. CONCLUSION [21] Based on the foregoing, this Court hereby allows Enclosure 10 and orders the costs in the amount of RM10,000.00. Dated on 16 February 2026 Signed ………………………………………. Hazizah binti Kassim Judicial Commissioner Family High Court (2) Shah Alam, Selangor S/N z7/ymnhOg06RGjtc8SAg8w

For the Plaintiff : Keppy Wong Khai Pun dan Choong Jing Yen Tetuan Keppy Wong & Associates (Wilayah

For the Defendants : Dinesh Nandrajog dan Khairul Bariah bt Kharuddin Tetuan Nandrajog (Shah Alam, Selangor) S/N z7/ymnhOg06RGjtc8SAg8w