Lakefront Residence Sdn. Bhd. v 1. ) Tetuan Lui & Bhullar (WA-22NCvC-830-12/2021)

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CHANDNI A/P ANANTHA KRISHNAN …DEFENDAN-DEFENDAN Grounds of Judgment 04/12/2023 17:23:44 WA-22NCvC-830-12/2021 Kand. 104 S/N VEe0pCm/XkasTakhOnNOeg

The Plaintiff seeks leave to amend its Statement of Claim as seen in the Notice of Application in Enclosure 88.

This Court is of the opinion that the application is without merit and dismissed the same on 27-10-2023.

The reasons for the said dismissal are contained in the following paragraphs. B. Applicable law for Amendments 4. It is trite law that generally ample latitude should be given to a litigant to amend its pleading if the other side is not prejudiced, and it does not change the characteristic of the defence or claim. See Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd [1983] 1 CLJ 191.

Nevertheless, this Court is duty bound to consider whether the said amendment serves no purpose or is useless. A pleading that is on the face of it is bad in law will not create any real question or issue S/N VEe0pCm/XkasTakhOnNOeg that must be determined by this Court. See Collete v Goode [1878] 7 Ch D 842 and Ponnusamy v Nathu Ram [1959] 1 LNS 73.

Good J in Ponnumsamy v Nathu Ram (supra) stated: - “Taking the first of those propositions, Bowen LJ in the case of Lawrence v. Lord Norreys [1888] 39 Ch D 213, 215 says: No Court ought to refuse leave to make such amendments (that was with reference to a later amendment alleging fraud) if it saw any reasonable prospect, or, I made say, reasonable probability, that a case could be made of fraud which would defeat the statute - that there was any substance in the case, that it was not simply fiction and imagination. That passage goes to show that the Court should look at the probable consequences of the amendment, and it would appear to follow that if the amendment would be ineffectual then it ought not to be allowed to be made. That principle was followed in the case of Morel Brothers & Co. Ltd. v. The Earl of Westmoreland [193] 1 KB 77 as appears from the judgment of the Master of the Rolls where he refused an application to amend the pleadings on the ground that the plaintiffs would S/N VEe0pCm/XkasTakhOnNOeg fail even if the amendment were allowed. And in Wood v. The Earl of Durham [1888] 21 QBD 501 where the plaintiff was a professional jockey suing for damages for libel charging him with unfairly hand dishonestly riding the horses in a particular stable, the defendant pleaded a justification and afterwards applied to amend his defence by adding a paragraph alleging that at the time of the publication the plaintiff was commonly reputed to have been in the habit of unfairly and dishonestly riding horses in races, so as to prevent them from winning. It was held that as general evidence of the plaintiff's bad reputation (if admissible) could only be given in reduction of damages, and not in answer to the action, the paragraph did not contain a statement of material facts on which the defendant relied for his defence, within the meaning of O. XIX r. 4, or a ground of defence which must be raised under O. XIX r. 15, but was a denial or defence as to damages claimed or their amount, within the meaning of O. XXI r. 4, and therefore ought not to be pleaded, and leave to amend must be refused.”

In this case, having considered the proposed amendments, I find that the said amendments were useless and do not create a valid cause of action against the Defendants. C. Proposed Amendments are useless 8. The proposed amendments intended to add a new cause of action of conspiracy to injure the Plaintiff by instigating the class action by the purchasers against the Plaintiff before the Shah Alam High Court.

The Plaintiff further contends that the actions of the Defendants with the collusion of a third party known as Sew had caused the share price of the Plaintiff’s principal, MCT Berhad, to drop and had enabled the Defendants to purchase and control the main company.

The Plaintiff further alleges that the Defendants had promoted their firm with one Sew to create false accounts and false representations to the purchasers to promote themselves and did cause the share price of MCT Berhad to drop.

The Plaintiff further claims that the Shah Alam Suit was wrongful as it was barred by Res Judicata and due to the alleged limitation period preventing the purchasers from instituting any further claims against the Plaintiff.

I find that the said proposed amendments to be useless as the Plaintiff has failed to suggest a valid cause of action against the Defendants for conspiracy.

It is trite law that a claim for conspiracy requires the following elements to be satisfied and pleaded by a litigant: -

There must exist a combination or an agreement or intention between two or more persons to cause injury to another.

the acts are carried out in accordance with that agreement or that intention.

the Plaintiff suffers damage as a result of the said action. See Renault SA v Inokom Corp Sdn Bhd [2010] 5 MLJ 394 and Lornho plc v Fayed [1991] 3 All ER 303.

The gist of the Plaintiff’s complaint in these amendments lies with the alleged fact that the Defendant had allegedly (i) conspired with one Sew to cause the purchasers to agree to employ the Defendants to sue the Plaintiff for late delivery of the properties, (ii) that the cause of action in Shah Alam were wrong and (iii) that as a result of which the share price in MCT Berhad had fallen leading to damages to the Plaintiff.

I find that one of the main essential characteristics for a complete cause of action of conspiracy is missing or is misunderstood by the Plaintiff from the proposed claim. The Plaintiff has failed to plead the damage that it has suffered because of the alleged wrong by the Defendant and Sew for an alleged claim for conspiracy.

When I peruse the proposed statement of claim I find that the damages claimed against the Defendant, if any, arise from the alleged suit filed in Shah Alam and the alleged reduction of the share price of MCT Berhad.

Firstly, the proceedings in the Shah Alam High Court are still pending and have yet to be decided. Whether the Plaintiff is correct that the said suit is valid or otherwise is a matter that is best left to be decided by the said Court. This Court will not interfere with those proceedings and to allow the Plaintiff to argue on the validity of those proceedings before this Court would be wrong at this juncture. In other words, the validity or otherwise of those proceedings should not be the subject of a matter fresh suit until such time the said proceedings have been finally disposed with a final finding by the arbiter of fact.

Secondly, the Plaintiff did not specify what damage it has suffered because of the alleged wrongs. The only damage it claims lies with the alleged reduction of the publicly quoted share price of MCT Berhad. That would surely not be the losses claimable by the Plaintiff as it would surely not have shares in its principal. Neither did the Plaintiff show the amount of shares it holds in MCT Berhad and the alleged damages it has suffered because of the Defendants actions. If any party suffered any such damage, it would surely be shareholders of MCT Berhad and not the Plaintiff.

The other reason I do not allow the amendments is the fact that the alleged conspirator, Sew Soon Seng, was not made a party to this suit. The Defendants are partners and members of the firm known as Messrs Lui & Bhullar, the 1st Defendant. If the Plaintiff is correct and intends to institute a claim for conspiracy against the Defendants and Sew Soon Seng, then surely Sew Soon Seng must be added as a party to the suit. This was not done and to allow this proposed amendment would be wrong.

I am also of the opinion that allowing the amendments will enable the Plaintiff to thwart the Defendants’ right to act as Advocates and Solicitors to represent their clients in the Shah Alam proceedings.

I am of the opinion that the Defendants have a right to represent their clients in those proceedings and to have all avenue to represent their client’s case without fear and favor. The claim may be wrong as suggested by the Plaintiff, but that issue is best left to be decided before the said Court and not ventilated through a collateral attack on solicitors as suggested by the Plaintiff.

I refer to the judgment of Viscount Simon LC. In Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] 1 All ER 142: ‘If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even though it causes damage to another person.'

The Plaintiff have also claimed that the Defendants did breach the Personal Data Protection Act 2010 and the Legal Profession Act in causing the purchasers to agree to be represented by the Defendants.

I have combed the said statutes referred to by the Plaintiff or impliedly referred to by the Plaintiff and find that these do not create any statutory duty or any statutory cause of action that is enforceable by the Plaintiff or by any members of the public.

Any breach of the said statutes will only attract penal or disciplinary actions against the Defendants. These statutes do not create any publicly enforceable cause of action. I refer to the decision of Harminder Singh J (as he then was) in David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd [2009] 4 MLJ 253 and the decision of the Court of Appeal in Shahidan Shafie v Atlan Holdings Sdn Bhd [20178] 4 CLJ 587.

Even if I am wrong on the above issues, I also find that the Plaintiff’s proposed amendments changes the suit’s character drastically that it prejudices the Defendants. To add a new claim for conspiracy based on new allegations not appearing in the original pleaded case, without one of the main alleged co-conspirators being added in as a party, is surely prejudicial and unfair on the Defendants. This would be a drastic change to the character of the suit.

In the circumstances, I cannot allow the Plaintiff leave to amend the Statement of Claim to add a new cause of action that does hold water. The proposed amendment is a non-starter and should not be allowed to pass the opening gates. To do otherwise will be a waste of judicial time and resources best served for other endeavours. S/N VEe0pCm/XkasTakhOnNOeg D. Decision 28. For the above reasons, I dismiss the Plaintiff’s application to amend its Statement of Claim and cost in the cause. Dated 27th October 2023 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court Malaya Kuala Lumpur NCvC 8 S/N VEe0pCm/XkasTakhOnNOeg Shamani Perumal counsel for the Plaintiff Messrs. Sree Harry & Co Advocates and Solicitors Harneshpal Singh counsel for Defendants