Harlina Binti Ab Aziz v 1. Wang Leong Hong @ Wong Leong Hong (BA-22NCVC-294-07/2019)

This is the 1st and 2nd Defendant’s Notice of Application to strike out 4 the Plaintiff’s claim under Order 18 rule 19(1)(a), (b) and (d) and/or Order 5 92 rule 4 of the Rules of Court 2012(ROC) and for costs and other reliefs. 6 7

After considering the application, together with the Affidavits and the 8 submissions of both sides, I allowed the application. 9 10

The Plaintiff has appealed against this decision. The following are my 11 grounds of judgment. 12 13 Background Facts 14

The Plaintiff and the Defendants were friends as well as business 15 partners but later had a falling out over the property known as Flat 13, 16 Compass House, 5 Park Street London, SW6 2FB (the said property). 17 18

The Plaintiff alleges that she is the rightful owner of the said property. 19 20

The Defendants allege that she sold the said property to them in 21 return for friendly loans to overcome her financial difficulties given over a 22 period which span from 2011 to 2015. 23 24

In order to avoid the foreclosure of the said property the Defendants 25 agreed to re-finance the Loan Facilities taken by the Plaintiff from 26 Maybank. On 11.7.2015 the Defendants accepted the Letter of Offer for the 27 refinancing exercise from the Bank. 28 3

On 3.8.2015 both the Plaintiff and the Defendants executed a Deed 1 of Settlement to reflect the sale and transfer of the said property from the 2 Plaintiff to the Defendants. 3 4

The salient terms of the Settlement Agreement stipulated as follows :

The acknowledgement of the Plaintiff that the Defendant 6 had rendered financial assistance to her amounting to 7 RM1,320,000.00 (equivalent to 220,000.00 Sterling 8

(ii) The plaintiff agreed to sell and transfer the said property 10 to the Defendants at a purchase price of 550,000.00 11 sterling Pounds;

(iii) The agreed outstanding debt of RM1,320,000.00 shall be 13 set-off against the aforesaid purchase; and 14

(iv) Upon the execution of the Settlement Agreement the 15 Plaintiff’s rights, title and interest in the said property shall 16 pass absolutely to the Defendant. 17 18

Over this backdrop has arisen this Notice of Application to strike out 19 the Plaintiff’s Writ and Statement of Claim on the following two grounds :

the Plaintiff has no locus standi to claim relief sought as 21 Plaintiff is an undischarged bankrupt;

the Plaintiff’s allegation of trust is unsubstantiated and is 23 contrary to contemporaneous documents. 24 25

For the purposes of this application I will not concern myself with the 27 first ground of contention which is pertaining to the issue of locus standi. I 28 4 find that there is ample evidence shown that the Plaintiff obtained the 1 requisite sanction from the Insolvency Department before filing this suit. 2 (see Exh H7 and H8 of Plaintiff’s Affidavit in Reply dated 13.12.2019). 3 4 The Plaintiff’s Submissions in opposition to the Application 5

The Plaintiff’s allegations against the Defendants are that the 6 Defendant had agreed to hold the said property on trust for the Plaintiff until 7 her financial situation improved. 8 9

The Plaintiff claimed that she had no intention to of selling the said 10 property to the Defendants. The Settlement Agreement was entered into 11 only as a means to redeem the said property from being foreclosed by 12 Maybank. 13 14

The Plaintiff alleged that there was an agreement between them that 15 the Defendants would return the said property to the Plaintiff after she was 16 able to. 17 18

It was the contention of the Plaintiff that the Defendants had received 19 rental from the use of the property since March 2015 and these amounts 20 were used to offset the friendly loan owned by the Plaintiff. 21 22

It was the further contention of the Plaintiff that the Defendants were 23 in breach of that alleged trust as they failed to return the said property to 24 the Plaintiff when she made a request for it. 25 26 27 28 5 The Defendant’s Case in support of the Application 1

The Defendant contented that the Plaintiff willingly and voluntarily 2 agreed to sell and transfer the said property to the Plaintiff in order to 3 reimburse the Defendants for the outstanding debt she owed to the 4 Defendants. 5 6

Hence the Plaintiff had on 2.11.2015 executed the following 7 documents :

a Facility Agreement with Maybank wherein the sum of 9 334,070.00 was granted to finance the balance purchase 10 price of the said property; and 11

(ii) a formal document titled the ‘Transfer of Whole of 12 Registered Title(s)(SPA) issued by the Land Registry of 13 the United Kingdom. 14 15

Based on the above it was the contention of the Defendants that the 16 Settlement Agreement and the SPA constituted valid and binding contracts 17 between the parties and thus, the Defendants are bona fide purchasers for 18 value of the said property. 19 20 Findings of the Court 21

It is trite that the power of the Court to strike out a claim is derived 22 from Order 18 rule 19 of the ROC 2012. 23 24

It has been held by countless cases that the Court will only strike out 25 a claim which is obviously unsustainable or where the Plaintiff’s case is 26 clearly untenable. 27 28 6

The salutary principles laid down by the Supreme Court in Bandar 1 Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd 2 [1993] 4 CLJ 7, [1993] 3 MLJ 36 must be kept foremost in mind when 3 making a decision whether to allow a striking out application or not. His 4 Lordship Mohamed Dzaiddin SCJ (as he then was) explained as follows : 5 6 “The principles upon which the Court acts in exercising its power 7 under any of the four limbs of O. 18 r. 19(1) Rules of the High 8 Court are well settled. It is only in plain and obvious cases that 9 recourse should be had to the summary process under this rule 10 (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), 11 and this summary procedure can only be adopted when it can be 12 clearly seen that a claim or answer is on the face of it "obviously 13 unsustainable" (Attorney-General of Duchy of Lancaster v. L. & 14 N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a 15 minute examination of the documents and facts of the case, in 16 order to see whether the party has a cause of action or a defence 17 (Wenlock v. Moloney[1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). 18 The authorities further show that if there is a point of law which 19 requires serious discussion, an objection should be taken on the 20 pleadings and the point set down for argument under O. 33 r. 21 3 (which is in pari materia with our O. 33 r. 2 Rules of the High 22 Court) (Hubbuck v. Wilkinson ) (supra ). The Court must be 23 satisfied that there is no reasonable cause of action or that the 24 claims are frivolous or vexatious or that the defences raised are not 25 arguable. (Emphasis added).” 26 27

In the case of Seruan Gemilang Makmur Sdn Bhd v Kerajaan 28 Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 the court laid out 29 the tests for a striking out application as follows : 30 7

it is only in plain and obvious cases that recourse should 1 be had to the summary process under the rule;

this summary procedure can only be adopted when it can 3 be clearly seen that a claim or answer is on the face of 4 it 'obviously unsustainable' (emphasis added);

it cannot be exercised by a minute examination of the 6 documents and facts of the case in order to see whether 7 the party has a cause of action or a defence; and 8

If there is a point of law which requires serious 9 discussion, an objection should be taken on the pleadings 10 and the point set down for argument under O. 33 r. 3 of 11 the ROC; and 12

The court must be satisfied that there is no reasonable 13 cause of action or that the claims are frivolous or 14 vexatious or that the defences raised are not arguable. 15 16

In this case the Defendants have sought to rely on the limbs under 17 Order 18 rule 19(1)(b) and/or (d) ROC. This means that the onus is on the 18 Defendants to satisfy this Court that the Writ and Statement of Claim is 19 scandalous, frivolous or vexatious and is/or otherwise an abuse of the 20 process of the court. 21 22

In addition, the Defendants have cited Order 92 rule 4 ROC on the 23 inherent powers of the Court to make any order as may be necessary to 24 prevent injustice or to prevent an abuse of the process of the court. 25 26

Having considered the pleadings and the contents of the respective 27 affidavits filed by the Plaintiff and the Defendant it is clear to see that the 28 8 contemporaneous documents exhibited in the Defendant’s Affidavit showed 1 the true intention of the parties. Further, the contemporaneous documents 2 between the parties did not indicate nor did it support what has been 3 averred by the Plaintiff to be so. 4 5

The facts have shown that the Plaintiff was unable to service her 6 housing loan repayments and as a result the said property was facing 7 foreclosure from the bank. The parties executed the Deed of Settlement on 8 3.8.2015. Following that the parties agreed to enter into a Facility 9 Agreement with Maybank. Subsequently the SPA was executed. 10 11

There has notably been a significant passage of time since the SPA 12 and the Deed of Settlement were signed. The court accepts that when 13 agreements are entered into by two consenting parties and where there is 14 no forgery or fraud alleged it will only show the true intention of the parties. 15 16

In this case the Plaintiff did not dispute that she had entered into 17 these agreements nor did she dispute that she put her signatures down on 18 the dotted line of the said agreements. 19 20

It is my judgment that the Settlement Agreement and the SPA are 21 valid and binding contracts between the Plaintiff and the Defendant. The 22 documents signified the true intentions of the parties. 23 24

If indeed the Defendants were holding the said property in trust for 25 the Plaintiff then surely the Settlement Agreement would clearly have made 26 provisions for that. 27 28 9

Given that the terms of the Settlement Agreement are clear and 1 unambiguous, it must follow that the Court must give effect to the terms of 2 the agreement made between the parties as encapsulated within the terms 3 of the Agreement as evidenced. 4 5

The contentions of the Plaintiff are unsupported by any 6 contemporaneous documents. The Plaintiff has failed to show any shred of 7 evidence that this was a temporary arrangement between the parties and 8 that the Defendant was holding the said property in trust for her until she 9 became financially stable again. 10 11

I have perused the Settlement Agreement and the SPA and both are 12 conspicuously clear and contain unambiguous terms and I believe that it is 13 the duty of this court to give effect to such clear and unambiguous 14 intentions of the parties. The parties conceptualized this bargain, agreed 15 upon it and put it into writing. There is little for the court to do except to give 16 effect to the plain meaning of the contents of the Settlement Agreement 17 however much a bitter pill for the dissatisfied party to swallow. 18 19

In this case the intention of the Deed of Settlement is found within its 20 4 walls. It is inconceivable for the Plaintiff to claim that she was taken 21 advantage off when there were intervals of time between the signing of the 22 documents. Had the arrangement been to be a mere holding over the 23 documents would have specified the terms. This was not the case. I am of 24 the view that the Plaintiff’s allegations are bare averments. 25 26

Parole evidence have no place in contradicting what has been 27 reduced into writing especially so when there is no ambiguity surrounding 28 10 the terms and conditions of the agreement itself. The provisions of sections 1 91 and 92 of the Evidence Act are relevant. Section 92 EA reads : 2 3 “When the terms of any such contract, grant or other disposition of 4 property, or any matter required by law to be reduced to the form of 5 a document, have been proved according to section 91, no 6 evidence of any oral agreement or statement shall be admitted as 7 between the parties to any such instrument or their representative 8 in interest for the purpose of contradicting, varying, adding to or 9 subtracting from its terms….” 10 11

It is therefore my opinion that the Plaintiff’s own comprehension of the 12 reasons for execution of the document does not merit nor does it warrant a 13 trial as the Agreements she willingly and voluntarily entered into are binding 14 on the parties according to its terms stated therein. Furthermore, the 15 Plaintiff had the benefit of legal advise throughout the stages for execution 16 of the agreements signed. 17 18

I agree with Defendants’ contention that the Plaintiff’s allegations 19 which broadly contend that the said property is being held on trust by the 20 Defendants are wholly inconsistent with the contemporaneous documents 21 in the present case. It is clear from the documents exhibited by the 22 Defendants that the Plaintiff was at all material times fully aware of the sale 23 of the said property to the Defendants and had willingly singed all the 24 necessary documents for the sale. The Plaintiff cannot now turn around 25 and change her mind and say that she wants her property back. 26 27 28 29 11

On the basis of those documents, I agree with the Defendants’ 1 submissions that the Plaintiff’s allegations are obviously unsustainable with 2 no prospect of success and that to proceed with a full trial is unnecessary. 3 4 Conclusion 5

Having considered the grounds in support of the Notice of 6 Application, the pleaded claim and defence, the factual background and the 7 contentions of both parties, I uphold the Defendants’ contention that the 8 Plaintiff’s claim is scandalous, frivolous and vexatious and is otherwise an 9 abuse of court process. 10 11

The Plaintiff has only made unsupported allegations claiming that the 12 Defendants are holding the said property on trust for her. I find that the 13 Settlement Agreement and the SPA are legally binding on the Plaintiff. 14 15

Hence based on those grounds stated above, the application in 16 Enclosure 13 is allowed with costs. 17 18 Dated 06 October 2020 19 20 21 22 (DATO’ JULIE LACK) 23 Judicial Commissioner 24 High Court of Malaya 25 Shah Alam, Selangor Darul Ehsan 26 27 28 12 Counsel 1 For the Plaintiff : 2 Lim Fang Say & Azian Binti Shaharum 3 (MESSRS AZIAN & CO) 4 5 For the Defendant : 6 Sean Tan Yang Wei 7 (MESSRS THOMAS PHILIP) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32