Malayan Banking Berhad v Wong Wei Pin (WA-22NCvC-506-07/2021)

The Plaintiff’s claim against the Defendant is for defamation whereas the Defendant’s counterclaim against the Plaintiff is for misrepresentation and fraud.

There are 2 applications before the Court. The 1st is the Plaintiff’s application is to strike out the Defendant’s counter claim. The 2nd is the Defendant’s application to strike out the Plaintiff’s reply to the defence and defence to counter claim on the basis of res judicata.

Both the applications are under Order 18 Rule 19 of the Rules of Court 2012 (the rules) which states as follows: 06/04/2023 10:21:31 WA-22NCvC-506-07/2021 Kand. 178 Striking out pleadings and endorsements (O. 18 r. 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, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a). The brief facts

The Plaintiff is a Bank whereas he Defendant is a customer.

The subject matter of both the claim and counter claim is a bank card issued by the Plaintiff to give reward points to its customers.

The Plaintiff’s contends that the card was to give reward points for personal retail purchases. The Plaintiff alleges that the Defendant has used the card for commercial or business purposes and therefore not entitled to the reward points.

Upon the Plaintiff’s refusal to give the reward points the Defendant had issued an e mail which was publicly published which the Plaintiff claims have defamed them, and hence this claim.

The Defendant on the other hand alleges that the refusing to give the reward points, amounts to misrepresentation and fraud by the Plaintiff upon the Defendant. Duplicity of proceeding

In the Court’s view the common issue in both the applications is whether there is a duplicity of proceedings in the Defendant’s counter claim.

The Court noted that the Defendant had brought a similar claim of misrepresentation and fraud against the Plaintiff for the refusal to give the reward points for the same card in the Session Court Kuala Lumpur which is pending trial.

It is the Court’s view by bringing the same claim in 2 different forums is an abuse of the process of Court. Abuse of process of court is a grounds to strike out as stated under Order 18 Rule 19 of the Rules.

In the upshot the Court allowed the Plaintiff’s application and dismissed the Defendant’s application. Dated: 4.4.2023 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Tetuan Shearn Delamore & Co. 7th floor, Wisma Hamzah Kwong Hing Kuala Lumpur City Centre 50100 Kuala Lumpur For the Defendant: Tetuan Zubeda & Amarjeet 85-7-6, VSO@PJCC Jalan Utara 46200 Petaling Jaya Selangor.