it is otherwise an abuse of the process of the Court, 5 and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [7] In contesting the Striking Out Application, the Plaintiff referred to Bandar Builder Sdn Bhd & Ors v United Banking Corporation Bhd [1993] 3 MLJ 36 and argued that this is not a plain and obvious case for the court to exercise its power under Order 18 Rule 19. The following passage in the judgment of the Supreme Court was referred to: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable' (see AG of Duchy of Lancaster v L & NW Rly Co 8). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” 6 (emphasis added) The parties’ arguments [8] The Plaintiff took a very simple approach, in arguing that the Agreement had been entered into, the terms of the Agreement had been agreed to, and the Defendant had failed to pay the sum of RM1,1000,000 to the Plaintiff, as had been agreed. [9] However, the Plaintiff failed to appreciate the main issue raised by the Defendant, namely that the Agreement is illegal, as it is entered into in contravention of the Moneylenders Act. [10] The Plaintiff’s argument was simply that the Loan was a friendly loan between friends, and would not be caught within the definition of a “business of moneylending” under the Moneylenders Act. [11] It is unfortunate that there was a lack of real analysis in the submissions of both counsel for the Plaintiff and the Defendant on the issue of the application of the Moneylenders Act. Counsel for the Plaintiff did not directly address the application of the Moneylenders Act, save to continuously repeat during submissions that the Loan was merely a friendly loan. Counsel for the Defendant went a bit further and referred to cases on the application of the Moneylenders Act, but these cases are unhelpful as they refer to provisions that had been deleted pursuant to relatively recent amendments made to the Act. 7 [12] With limited cases given by the parties to support their arguments, the court relied on its own research on this issue. Does the Agreement contravene the Moneylenders Act? [13] The obvious first point of reference would be section 5(1) of the Moneylenders Act, which states that: “(1) No person shall carry on or advertise or announce himself or hold himself out in any way as carrying on the business of moneylending unless he is licensed under this Act.” (emphasis added) [14] Further to the provision above, the definitions of the following terms, as set out in section 2 of the Moneylenders Act, are of relevance: a. ““moneylending” means the lending of money at interest, with or without security, by a moneylender to a borrower”; and b. ““interest” does not include any sum lawfully charged in accordance with this Act by a moneylender for or on account of stamp duties, fees payable by law and legal costs but, save as aforesaid, includes any amount by whatsoever name called in excess of the principal paid or payable to a moneylender in consideration of or otherwise in respect of a loan”. 8 (emphasis added) [15] In this case, the following facts are undisputed: a. the Plaintiff is not a licensed moneylender under the Moneylenders Act; b. the Agreement is entitled a “service agreement” but is substantially an agreement pursuant to which the Plaintiff provided a loan to the Defendant; c. the sum agreed to be paid by the Defendant pursuant to the Agreement (“RM1,100,000) is higher than the sum lent by the Plaintiff to the Defendant (RM800,000); and d. the Plaintiff had previously provided the First Loan and the Second Loan to the Defendant, which the Defendant had fully repaid in sums in excess of the principal sums loaned. [16] It can be implied that the Plaintiff, in providing the Loan of RM800,000 to the Defendant, and requiring the Defendant to repay RM1,100,000, which is in excess of the principal sum provided, would have provided the Loan with interest. In this regard, the transaction carried out by the Plaintiff would fall within the definition of “moneylending”, and consequently, the Plaintiff would be in contravention of the Moneylenders Act, in carrying on the business of moneylending without a licence. [17] It is also important to take note of the following presumption set out in section 10OA of the Moneylenders Act: 9 “Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved.” [18] The Court of Appeal in Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 6 CLJ 1 addressed the presumption in section 10OA of the Moneylenders Act, in a case involving a sale a purchase agreement. The issue at hand was whether the transaction was a moneylending transaction couched as a sale and purchase transaction, in breach of the Moneylenders Act. The Court of Appeal held as follows: “[138] Therefore, even though this appears to be a once-off or one-off transaction, the burden has now shifted to the lender to show that it is not in the business of moneylending. The guidance provided in the case of Muhibbah Teguh Sdn Bhd v. Yaacob Mat Yim [2005] 4 CLJ 853 would be helpful where Vincent Ng J (as he then was) held, at p. 857: It is axiomatic that one or two moneylending transactions (even in consideration of a larger sum) does not make the lender a moneylender within the purview of the definition of 'moneylender' in s. 2 of the Act. It is also axiomatic that the Act is intended to apply to moneylenders exclusively and not to moneylending transaction or transactions per se. This statement of law was again affirmed by Federal 10 Court in Yeep Mooi v. Chu Chin Chua & Ors [1960] 1 LNS 169; [1981] 1 MLJ 14 which I shall discuss later in this judgment. (See also Cheong Kim Hock [1992] 2 SLR 349, Lek Peng Lung [1992] 2 SLR 150 and Subramaniam Dhanapakiam [1991] 1 LNS 101; [1991] 2 MLJ 447.) [139] We had held that the interest element is in the RM400,000 reflected on the first SPA which we had held was never cancelled, the question is whether a single transaction shown can make the plaintiff a moneylender. It is not in dispute that the plaintiff does not have a moneylending license. In the light of the presumption in s. 10OA of the Moneylenders Act 1951, a presumption is drawn that it is a moneylending transaction. [140] The plaintiff had not adduced any evidence to rebut the presumption and the stand taken by the plaintiff was that it was a sale and purchase of property transaction. Having made that election, the plaintiff cannot resile from it and indeed did not lead evidence to rebut the presumption.” (emphasis added) [19] In this case before this court, we are not even dealing with the issue of a one-off transaction. The Loan was not a one-off loan. The Defendant averred that there were three loans in total, which were provided to the Defendant, and that these transactions show some degree of system and continuity. These averments were not disputed by the Plaintiff. Thus, the presumption in section 10OA of the Moneylenders Act 11 would apply. With no challenge by the Plaintiff, the court finds that the Plaintiff has failed to rebut the presumption that it is carrying on the business of moneylending. [20] Consequently, the Agreement is an unenforceable agreement pursuant to section 15 of the Moneylenders Act, which states that: “No moneylending agreement in respect of money lent after the coming into force of this Act by an unlicensed moneylender shall be enforceable.” [21] This approach was taken in both Global Globe Property and Mahmood Ooyub v Li Chee Loong [2020] 1 LNS 660. In the words of the Court of Appeal in Mahmood Ooyub: “[234] The unlicensed moneylender cannot under the guise of not being covered by the Moneylenders Act 1951 take shelter in the freedom of contract in that parties can create contractual obligations not prohibited by the Act. The moment a Court of law makes a finding that the transaction is moneylending and the fact that the lender is not licensed to lend with interest that makes the whole agreement no matter how it is structured, into an illegal moneylending agreement which is unenforceable under section 15 of the Moneylenders Act 1951.” [22] With that, I will address one final issue raised by the Plaintiff. The Plaintiff referred to Datuk Bandar Kuala Lumpur v Pembinaan RT Sdn Bhd [2013] 2 MLJ 873, in support of his argument that striking out should not be allowed. In that case, the Court of Appeal dismissed an application 12 to strike out on the basis that issues on the existence of deceit in a contract were prima facie triable issues. This instant case raises an issue of illegality of the Agreement, resulting in the Agreement being unenforceable. It is on the basis of this illegality that the court finds that this action to be scandalous, frivolous, vexatious, or is otherwise an abuse of the process of the court. As such, guided by Bandar Builder Sdn Bhd, the court finds this to be a plain and obvious case to exercise its power under Order 18 Rule 19 of the Rules of Court 2012. D.