Datuk Wira LIM Kim Kee v Ocbc Bank (Malaysia) Berhad (WA-22NCvC-82-03/2023)

LAM KO LUEN 26/03/2024 10:02:48

NINA LAI JIAN XIAN … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (ENCLOSURE 14, 16 19 & 20) INTRODUCTION [1] There were seven (7) applications that came up for hearing before this Court on the same day. Four (4) applications were by the Defendants to strike out the Plaintiffs’ Amended Statement of Claim (SOC) dated 27.2.2023 under Order 18 R 19 (1) (b), (c) and (d) of the Rules of Court 2012 (ROC 2012) which were filed by the 1st Defendant (Enclosure 14), 2nd Defendant to 6th Defendant (Enclosure 16), 7th to 22nd Defendant (Enclosure 19) and 23rd to 25th Defendant (Enclosure 20) (Striking Out Applications). The other three (3) applications were by the Plaintiff for recusal application of Messrs Clarence Edwin and Datuk Dr. Clarence Balan A/L Edwin Palanisamy from representing the 1st to 6th Defendant (Enclosure 18), application to strike out the 1st to 6th Defendant’s defence under O18 R 19 (1) (a), (b), (c) and (d) ROC 2012 (Enclosure 24) and application to strike out defence of the 7th to 25th Defendant under O18 R 19 (1) (a),

(b), (c) and (d) ROC 2012 (Enclosure 26). [2] This Court dealt with the Striking Out Applications of the Plaintiff’s claim first, because the determination of that Striking Out Applications will determine the entire suit. BRIEF FACTS [3] The Plaintiff in his SOC claimed that D1 had conspired with D7 with intention to injure the Plaintiff, in relation to a Johor Bahru Civil Suit No. JA-22NCvC- 17-01/2016 (JB Conspiracy Suit). [4] The JB Conspiracy Suit was filed on 28.01.2016 by D1 through its solicitors, D7, against 37 Defendants pertaining to a project, Taman Industri Sri Sulong in Parit Sulong, Batu Pahat, Johor (Project). [5] Messrs. K K Lim & Associates (KKLA) was named as the 13th Defendant in the JB Conspiracy Suit being the law firm that prepared the loan document in the financing of the Project. At the material time, Plaintiff was a managing partner of KKLA. [6] On 13.12.2019, KKLA filed an application to dismiss and strike out the JB Conspiracy Suit which was dismissed by the High Court but on appeal was allowed by the Court of Appeal on 10.01.2022 (COA Order). On 24.07.2023, the Federal Court allowed D1’s Application for Leave to Appeal. The appeal before the Federal Court is still pending at the time when this matter was heard at this Court. [7] KKLA was dissolved on 28.05.2016 immediately after the JB Conspiracy Suit was filed as evidenced in the letter from the Bar Council Malaysia dated 14.03.2023 (Enclosure 21/Exhibit D3)- “Current Status Inactive-KK LIM AND ASSOC has been dissolved and ceased operation with effect from 28 May 2016”. [8] The Plaintiff and KKLA had also filed a suit at Johor Bahru High Court Civil Suit No: JA-22NCvC-61-03/2016 (JB Defamation Suit) on 25.3.2016, in which D1 was named as the 2nd Defendant and D1’s Head of Legal and Regulatory Compliance was named as the 1st Defendant. Thereafter, KKLA and the Plaintiff discontinued the JB Defamation Suit on 15.9.2016, without liberty to file afresh. [9] Subsequently, KKLA, filed another suit against D1 at the Kuala Lumpur High Court Civil Suit No: WA-22NCvC-63-01- 2022 (KL Suit) which was based on the JB Conspiracy Suit as a tort of abuse of process which KKLA as Plaintiff in the KL Suit stated that he had “...suffered loss of reputation... On top of that, the Plaintiff’s panelships with other financial institutions were also suspended.”. Plaintiff’s Contention [10] The Plaintiff filed this Suit in his personal capacity to seek damages.He contended that D1 through D7 had committed a conspiracy to injure the Plaintiff when filling the JB Conspiracy Suit. Defendant’s Contention [11] Generally the Striking Out Applications by the Defendants were premised on 3 grounds: that the Plaintiff’s claim was time-barred, res judicata and an abuse of the process of court. ISSUE [12] The main issue for determination in the Striking out Applications was whether the Plaintiff’s claim against the Defendants was time-barred pursuant to section 6 of the Limitation Act 1953. FINDINGS AND ANALYSIS [13] Having read the cause papers and parties' written submissions and having heard and considered the oral submissions by both the learned Counsels on all the issues raised, this Court is of the view that the one issue that will determine and dispose off the appeal is whether the Plaintiffs' case was caught by the statute of limitation. [14] As such, this Court will only deliberate on the issue of limitation as this was the sole ground that this Suit was dismissed. Limitation [15] The law of limitation on tort is as provided under section 6(1) of the Limitation Act 1953 that “actions shall not be brought after the expiration of six years from the date on which the cause of action accrued...”. Action is defined under section 2(1) of the Act as “... unless the context otherwise requires- "action" includes a suit or any other proceeding in a court of law...”. [16] Therefore, it is clear that a claim under tort must be filed in a court of law within 6 years from the date that the cause of action accrued. [17] In order to determine whether this suit was time barred, it is essential to identify when the cause of action accrued? Was it at the time of the filing of the JB Conspiracy Suit or upon disposal of the JB Conspiracy Suit? [18] The Defendants pleaded in their defence that the Plaintiff’s claim was time-barred (Paragraph 2 of the 7th to 25th Defendant’s defence and Paragraph 3.5 of the 1st to 6th Defendant’s defence) stating that the JB Conspiracy Suit was filed on the 28.01.2016, thus the claim by the Plaintiff was more than 6 years and time-barred. [19] In this regards, this Court observed that KKLA was dissolved on the 28.05.2016 four (4) months after the JB Conspiracy Suit was filed. [20] Such were the facts that the JB Conspiracy Suit was filed on the 28.01.2016, and KKLA was dissolved immediately after the filing of the

JB Conspiracy Suit. This was further reflected in the Plaintiff’s SOC at paragrapah 87- Following the actions of the Defendants set forth above, Plaintiff has suffered unnecessary loss and damage had Defendants not acted to conspire to injure and/or make fraudulent and manifestly false statements and acts of negligence against Plaintiff.”. [21] Further, the SOC clearly stated at paragraphs 89, 90, 91 and 92, on “Plaintiff’s Loss and Damages”, that- “89. Plaintiff's reputation has been damaged and Plaintiff's business has been severely impacted. Further to the Conspiracy Suit, Plaintiff has been suspended from his panelship by various financial institutions and did not receive any further instructions. As such, Plaintiff was forced to close all of his K K Lim & Associates branches.

Plaintiff has suffered loss of reputation by reason of the above actions of the Defendants. Among other things, Plaintiff has been questioned by his clients regarding the false charges spread by the Defendants through the Conspiracy Suit. In addition, Plaintiff's panelship with various financial institutions has also been suspended.

Further, Plaintiff states that prior to the Conspiracy Suit, Plaintiff managed 10 branches of the firm K K Lim & Associates located in, among others, Kuala Lumpur, Selangor, Johor, Melaka, Perak and Penang. The failure filing of the Conspiracy Suit has contributed to the closure of business as well as the dissolution of the firm of K K Lim & Associates managed by the Plaintiff.

The Plaintiff states that the Plaintiff has experienced phases of pain and/or distress in managing his daily life including but not limited to health matters such as emotional distress and severe damage to his reputation, especially the reputation of the Plaintiff's career as an influential lawyer.”. [22] In Datuk Seri Anwar Ibrahim v. Mohd Khairul Azam Abdul Aziz & Another Appeal [2023] 3 MLRA 149; [2023] MLJU 46, the Court of Appeal deliberated on the issue of cause of action and cited the case of Government of Malaysia v. Lim Kit Siang [1988] 1 MLRA 178; [1988] 2 MLJ 12; [1988] 1 CLJ (Rep) 63 which referred to the case of Letang v. Cooper and held- [16] The 1st and 2nd Appellants contended that the Respondent must have a cause of action before he can claim a relief. Guidance can be found in Government of Malaysia v. Lim Kit Siang [1988] 1 MLRA 178; [1988] 2 MLJ 12; [1988] 1 CLJ (Rep) 63, where the court held that a cause of action was as follows: "...a statement of facts alleging that the plaintiff's right either at law or by statute, has, in some way or another, been adversely affected or prejudiced by the act of the defendant in an action. Lord Diplock in Letang v. Cooper at p 242 defined 'a cause of action' to mean a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. In my view the factual situation spoken of by Lord Diplock must consist of a statement alleging that, first, the respondent/plaintiff has a right either at law or by statute and that, secondly, such right has been affected or prejudicated by the appellant/defendant's act." [23] The Plaintiff in his SOC stated at paragrapgh 41 that he was “severely affected” due to the filing of the JB Conspiracy Suit. Paragraph 41 of the SOC stated- “Following the 1 st Defendant through the 7 th Defendant naming K K Lim & Associates in the Conspiracy Suit, the Plaintiff acting as Managing Partner in this suit is an individual who is an individual who has been severely affected.”. [24] Based on the above facts which were derived from the SOC, clearly, the cause of action did accrue at the time of filing of the JB Conspiracy Suit. [25] On the contention by the Plaintiff that the cause of action only accrued when the Court of Appeal pronounced its decision, this Court finds that it does not hold water, as the matter is not final and pending appeal at the Federal Court. As such, this contention cannot stand for the cause of action does not complete until the disposal of the appeal at the Federal Court (see Rosli bin Dahlan v Tan Sri Abdul Gani bin Patail & Ors [2014] MLJU 559). [26] Accordingly, the limitation period expires in 2016. [27] Even if the Court were to take the later period of when KKLA was dissolved on 28.05.2016, being the earliest date for the cause of action to accrue, the expiry date is set to be on the 27.05.2022. This Suit was filed on the 23.02.2023. Thus, limitation does set in. [28] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled, see Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, Sim Kie Choon v. Superintendent of Pudu Prison & Ors [1985] 1 MLRA 167; [1985] 2 MLJ 385; [1985] CLJ (Rep) 293, Middy Industries Sdn Bhd & Ors v. Arensi Marley (M) Sdn Bhd [2013] 3 MLRA 114; [2013] 3 MLJ 511 and Gasing Heights Sdn Bhd v. Aloyah bte Abd Rahman & Ors [1996] 2 MLRH 631; [1996] 3 MLJ 259; [1996] 3 CLJ 695; [1996] 3 AMR 3000) and for cases on striking out based on limitation, see Alias Ismail v hairuddin Mohammad & Anor, CA [1997] 4 CLJ 669, Tio Chee Hing & Ors. v Government of Sabah, FC [1980] 1 LNS 124, Haji Hussin bin Haji Ali & Ors. V Datuk Haji Mohamed bin Yaacob & Ors. [1983] 2 MLJ227). [29] In Tan Sri Dato Eric Chia Eng Hock v NKK Corporation (Japan) [2004] 7 CLJ 137; [2004] MLJU 293, it was held- “I have dismissed the plaintiff’s appeal with costs. With respect, I accept the defendant’s argument. In my judgment, by reason of s.6(1)(a), the present suit, filed on October 2, 2002, is out of time by a year and is thus frivolous, vexatious and an abuse of the process of the court. In Ronex Properties Ltd v John Laing Construction Ltd & Ors [1982] 3 All ER 961, the English Court of Appeal held (at p 968): Where it is thought to be clear that there is a defence under the Limitation Act, the defendant can either plead that defence and seek the trialof a preliminary issue, or in a very clear case, he can seek to strike out the claim on the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence.”. CONCLUSION [30] The Striking Out Applications were therefore allowed with cost. Based on the reason that the action was time-barred, the Plaintiff’s claim is thus, dismissed. Hence, it is not necessary for this Court to deal with Enclosures 18, 24 and 26. ( DR. SUZANA BINTI MUHAMAD SAID ) Pesuruhjaya Kehakiman Mahkamah Tinggi Sivil NCVC 1 Mahkamah Kuala Lumpur. Dated: 25 March 2024 COUNSELS For the Plaintiff K K LIM Chambers Twelve, 12B-1-1, Cempenai Parc, No. 12, Jalan Chempenai, Bukit Damansara, 50490 Kuala Lumpur. For Defendants 1-6 Tetuan Claranch Edwin Law Officers No. 112, Jalan Keris, Taman Sri Tebrau 80050 Johor Bahru Johor Darul Takzim For Defendants 7-25 Messrs Sreenevasan Young J-3A-13 Solaris Mont Kiara, Jalan Solaris 50480 Kuala Lumpur