Khiew Chze Yeong v Neo Pei Chi @ Leo Pei Chi (JB-12A-1-02/2022)

HUP TIEN PLAINTATIONS SDN BHD (NO. PENDAFTARAN: 782502-W) … FIRST DEFENDANT

KHIEW CHZE YEONG (No. K/P: 690630-0105567) … SECOND DEFENDANT March 16, 2023 2 CORAM: SURIA KUMAR A/L DURAIRAJ JOHNSON PAUL JUDICIAL COMMISSIONER  JUDGEMENT  INTRODUCTION [1] This is an appeal against the decision of the learned Sessions Court Judge on 24.1.2022 in dismissing the Appellant/2nd Defendant’s application to strike out the Respondent/Plaintiff’s claim pursuant to Order 18 Rule 19 (1) (d) ROC 2012. [2] Parties will be referred to as Plaintiff and 2nd Defendant respectively in this Judgement. [3] The learned Sessions Judge ruled that the Plaintiff’s claim is not obviously unsustainable and Court is not in a position to determine at this stage whether there is a duplicity in the Plaintiff’s claim herein with the dispute for the matrimonial assets in the divorce proceeding pending in the High Court between the Plaintiff and the 2nd Defendant. March 16, 2023 3 BACKGROUND Plaintiff’s claim against 2nd Defendant [4] Plaintiff and 2nd Defendant are husband and wife. [5] They are separated and a Divorce Petition filed by Plaintiff is pending in the High Court. [6] In the meantime, Plaintiff filed a suit against the 2nd Defendant claiming for the following reliefs:- a) Defendan Pertama dan/atau Defendan Kedua Bersama-sama dan berasingan membayar gantirugi am kepada Plaintif, bagi tindakan konspirasi untuk melakukan frod seperti yang ditetapkan dan/atau ditaksirkan oleh Mahkamah yang Mulia; b) Defendan Pertama membayar gantirugi am kepada Plaintif bagi kecuaian dan/atau kecuaian melampau seperti yang ditetapkan dan/atau ditaksirkan oleh Mahkamah yang Mulia; c) Defendan Kedua membayar gantirugi am kepada Plaintif bagi kecuaian dan/atau kecuaian melampau seperti yang ditetapkan dan/atau ditaksirkan oleh Mahkamah yang Mulia; d) Defendan Pertama dan/atau Defendan Kedua membayar kembali kepada Plaintif sejumlah wang sebanyak RM259,500.00 sebagai gantirugi khas; March 16, 2023 4 e) Defendan Kedua membayar kembali kepada Plaintif sejumlah wang sebanyak RM192,750.00 sebagai gantirugi khas; f) Faedah pada kadar 5% setahun bagi jumlah Penghakiman dari Tarikh pemfailan Tuntutan ini sehingga tarikh Penghakiman; g) Faedah pada kadar 5% setahun bagi jumlah Penghakiman dari tarikh Penghakiman sehingga penyelesaian penuh; h) Kos; dan i) Lain-lain relif Mahkamah yang Mulia ini fikir adil dan suaimanfaat. [7] Plaintiff’s cause of action against the Defendants is for the return of the sum RM259,500.00 she had loaned to the 1st Defendant at the request of the 1st Defendant from time to time. [8] In the statement of claim, Plaintiff also pleads facts pertaining to the purported repayment of RM192,750.00 by the 1st Defendant towards her loan sum which was received by the 2nd Defendant via instalment payment on behalf of her and denies receiving the sum RM192,750.00. [9] Plaintiff pleads having no knowledge of vouchers evidencing the instalment payments and pleads that the same were falsified. [10] In relation to the purported repayment sum RM192,750.00, Plaintiff further pleads that the 1st and 2nd Defendant cheated her, committed March 16, 2023 5 gross negligence and/or conspired to commit fraud on her and pleads details of these allegations. 2nd Defendant’s Defence [11] 2nd Defendant denies that the sum RM259,500.00 was a loan from the Plaintiff to the 1st Defendant. [12] 2nd Defendant pleads that this sum was actually invested by him in the 1st Defendant solely without any contribution from the Plaintiff. [13] That in consideration of the said investment of RM259.500.00 in the 1st Defendant, 45,000.00 shares in the 1st Defendant was held under the Plaintiff’s name as the nominee for the 2nd Defendant. The 2nd Defendant contends that Plaintiff merely loaned her name and all this of this is within her knowledge. [14] According to the 2nd Defendant, he raised this investment sum (RM259,500.00) by borrowing from his mum, his brother and from his earnings. [15] 2nd Defendant further pleads that in the Divorce Petition filed by the Plaintiff, Plaintiff’s is seeking for division of the matrimonial properties from him and in his Answer to the Divorce Petition, he is seeking from the Plaintiff for the return of the 45,000 shares in the 1st Defendant company. [16] Therefore, 2nd Defendant pleads that Plaintiff is not entitled to commence this action since the investment sum of RM295,500.00 March 16, 2023 6 and the 45,000 shares are matrimonial property which must be dealt in the matrimonial proceeding pending before the Matrimonial Court. [17] 2nd Defendant further pleads that the repayment sum RM192,750.00 is part refund of the investment sum and is within the Plaintiff’s knowledge. He also pleads that this sum comes under matrimonial assets and as such it must be dealt with by the Matrimonial Court. [18] 2nd Defendant also pleads that Plaintiff has knowledge and consented to the 2nd Defendant receiving the repayment sum. [19] 2nd Defendant denies the allegations of cheating and fraud made by the Plaintiff and puts the Plaintiff to strict proof. THE LAW ON STRIKING OUT PLEADINGS [20] The law on striking out pleadings is trite. Please see BANDAR BUILDER SDN. BHD. & ORS v. UNITED MALAYAN BANKING CORPORATION BHD [1993] 3 MLJ 36, TAN WEI HONG (a minor suing through guardian ad litem and next friend CHUANG YIN E & Ors v MALAYSIAN AIRLINES BHD and other Appeals [2019] 1 MLJ 59 and PROTASCO BHD v PT ANGLO SLAVIC UTAMA & ORS [2020] MLJU 1413 in relation to principles governing striking out pleadings. Bearing in mind that this is a drastic power and guided by the principles established in these cases, I now proceed with the analysis and finding. March 16, 2023 7 ANALYSIS AND FINDING [21] 2nd Defendant’s application is premised on ground (d) i.e. Abuse of Court process. [22] In short, 2nd Defendant contends that only the Matrimonial Court has exclusive jurisdiction with regards to the investment sum RM295,500.00, the 45,000 shares in the 1st Defendant company and the repayment sum of RM192,750.00 all of which are matrimonial assets. [23] Court finds that apart from claiming for the sums RM295,500.00 and RM192,750.00, Plaintiff is also seeking for general damages for the acts of conspiracy to commit fraud, negligence and/or gross negligence against both Defendants by pleading facts and particulars alleging the same. [24] The claim based on the acts of conspiracy to commit fraud, negligence and/or gross negligence against both Defendants is not part of the matrimonial proceedings between the Plaintiff and the 2nd Defendant. [25] Furthermore, the 1st Defendant company is not a party in the Matrimonial proceeding. [26] Court also finds that the Divorce Petition is not produced in evidence for the Court to know what is the actual relief sought by the Plaintiff and whether the relief sought in this claim herein is also prayed for by the Plaintiff in the Divorce Petition. March 16, 2023 8 [27] Plaintiff vehemently contends that at the request of the 1st Defendant, from time to time she advanced loan totalling to sum of RM295,500.00 to the 1st Defendant. [28] Plaintiff produced various payments in support of her claim for the loan sum RM295,500.00 to the 1st Defendant company. A number of those payments were paid vide her personal cheque and one by “Jussi Enterprise”. As to whether, these payments were indeed made by the Plaintiff or actually from the 2nd Defendant can only be determined by way of a trial. [29] Plaintiff denies receiving part payment of RM192,750.00 from the 1st Defendant towards the said loan sum advanced by her to the 1st Defendant. [30] Plaintiff has no knowledge of the part payment sum RM192,750.00 purportedly received by the 2nd Defendant on her behalf as evidenced by the 1st Defendant’s payment vouchers and disputes the same. [31] There exist different versions between the Plaintiff and 2nd Defendant as to who actually advanced the loan sum RM295,500.00 and whether Plaintiff received part payment of RM192,750.00. These issues can only be resolved at trial by calling of witnesses. [32] I find support in the decision of Abu Mansor J (as he then was) in SOH KAH WAI v. DATUK HIEW NYUK YIN [1988] 2 CLJ Rep 431 wherein His Lordship held: - March 16, 2023 9 “It was not plain and obvious on the totality of the matter that the defence should be summarily dismissed without permitting the defendant to proceed to trial. The power of summary dismissal was a drastic power and should not be exercised except in plain and obvious cases. There existed a number of matters of fact on which the plaintiff and defendant expressed different versions. These issues could only be settled by calling witnesses and decided after a trial. The matter was far from obvious and the proper forum for solving the various issues was at a proper trial.” [33] If at all the 45,000 shares in the 1st Defendant company is a matrimonial asset, then the correct and proper procedure to be adopted by the 2nd Defendant would be to file an application to stay the Plaintiff’s action in the Sessions Court until after determination of the divorce proceeding in the High Court pursuant to Order 4 Rule 1(b) or (c) ROC, 2012.

[34] For the foregoing reasons, Court finds that the learned Sessions Judge did not err in dismissing the 2nd Defendant’s application to strike out the Plaintiff’s claim. [35] In the upshot the decision of the learned Sessions Judge is upheld and Appeal is hereby dismissed with cost. [36] The matter is to proceed for trial in the Sessions Court. March 16, 2023 10 Dated this 16th day of March 2023 at Muar in the State of Johore. t.t. SURIA KUMAR A/L DJ PAUL Judicial Commissioner High Court of Malaya Muar Johore Darul Ta’zim Counsels: For the Appellant : Lim Chin Huat with Lim Jye Kie For the Respondent : Muralidharan a/l Kalidass Solicitors: For the Appellant Messrs Lim Chin Huat Advocates & Solicitors No. 25-B (1st Floor) Jalan Syed Abdul Hamid Sagaff 86000 Kluang Johor [Ref. No. : LCH/GM/564/22/APP] March 16, 2023 11 For the Respondent Messrs Wong & Kiu Advocates & Solicitors 56A (1st Floor) Jalan Duku 86000 Kluang Johor [Ref. No. : Klg.66.NPC(LITI)21(K)] Hearing Date : 29th December 2022, 15th February 2023, 9th March 2023 Decision Date : 16th March 2023