Mohamad Salleh Bin Ismail v Odd Market Sdn Bhd (WA-12ANCvC-172-12/2025)

This is an appeal by the Appellant/Defendant against the decision of the learned Sessions Court Judge delivered on 24.11.2025 dismissing the Appellant/Defendant's application under Order 18 rule 19(1)(a)-(d) of the Rules of Court 2012 to strike out the Respondent/Respondent/Plaintiff's Writ and Statement of Claim.

Having carefully considered the Record of Appeal, the written and oral submissions of both parties and the applicable legal principles, the appeal is meritorious. The Sessions Court Judge fell into material error in failing to address the threshold issue of locus standi and in permitting a claim to proceed to trial despite the absence of any factual or legal foundation. My reasons are set out below.

The Respondent/Plaintiff commenced a civil action seeking recovery of RM200,000.00, alleged to be the balance of an "earnest deposit" paid to the Appellant/Defendant in relation to a proposed sale and purchase of Malay Reserve land known as GM 2087, Lot 5358, Mukim Bentong, Pahang.

The Appellant/Defendant's position is that the Respondent/Plaintiff never paid any such sum, was never involved in the transaction and has no legal standing to sue. The Appellant/Defendant maintains that the only contracting party was R. Abdul Wahab, who executed the Temporary Receipt for Sale dated 1.3.2023 and made all payments through Thevan Realty.

The Respondent/Plaintiff, however, asserts that it was the true purchaser and that the Appellant/Defendant had agreed to refund RM420,000.00 of which RM200,000.00 remains outstanding.

The Appellant/Defendant applied to strike out the Respondent/Plaintiff's claim on the basis that the Respondent/Plaintiff lacked locus standi, disclosed no reasonable cause of action and that the claim was frivolous, vexatious, and an abuse of process. The Sessions Court had dismissed the application.

The following issues arise:

Whether the Respondent/Plaintiff has locus standi to maintain the action.

Whether the Respondent/Plaintiff's pleadings disclose a reasonable cause of action.

Whether the Sessions Court applied the correct legal principles under Order 18 rule 19 ROC 2012.

Whether the claim is obviously unsustainable, warranting striking out. Applicable Legal Principles Striking Out - The High Threshold

The principles governing striking out are well established. A pleading may be struck out only in plain and obvious cases where the claim is "obviously unsustainable".

The classic formulation of the principles governing the exercise of this power is found in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, where the Supreme Court held:

"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 Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it 'obviously unsustainable'. 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."

The tests for striking out application under O.18 r.19 of the Rules of Courts 2012, as adopted by the Supreme Court in BANDAR BUILDER (supra) are, inter alia as follows:

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

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' (emphasis added);

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; and

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 O.18 r.19 of the Rules of Courts 2012; and

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.

In a Federal Court, Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (2016) 3 MLJ 1 ,the Court held that: "The principles for striking out pleadings pursuant to O 18 r 19 of the ROC are well settled. It is only in a plain and obvious case that recourse should be had to the summary process under this rule; and this summary process can only be adopted when it can clearly be seen that a claim on the face of it is obviously unsustainable (see Bandar Builder; Hubbuck & Sons v Wilkinson, Heywood and Clark [1899] 1 QB 86; A-G of Duchy of Lancaster v London and North Western Rly Co [1892] 3 Ch 274).”

The court must not conduct a minute examination of facts but must determine whether, on the face of the pleadings and undisputed documents, the claim is fundamentally defective.

Locus standi is a fundamental principle in litigation that requires a party to have the capacity to bring a legal action in court. If a party lacks this capacity, the court can strike out the action.

The Federal Court in MT Ventures Sdn Bhd & Anor v QM Print Sdn Bhd [2025] 6 MLJ the Federal Court made these findings on the issue of locus standi:- [5] The significant point to be made is that there is no requirement for further evidence and yet parties would be put to the expense, cost, and time of a full trial for no good reason. Similarly, with a case relating to locus or the capacity of a Respondent/Plaintiff to bring an action, the same result would ensue. Indeed, the strain of a prolonged and arguably unnecessary trial that is imposed on the litigants, and more importantly the considerable delay in determining the action are relevant matters for the purposes of construing the purpose and intent of the amendment introduced vide s 68(1)(f ) of the CJA. [69] As stated at the outset when the dismissal of a striking out of a writ or pleadings relates to a question of locus or state immunity or other threshold conditions, then s 68(1)(f) of the CJA does not operate so as to preclude an appeal on such a dismissal. Such a construction allows for the continued bringing of applications to strike out on preliminary points or issues which do not warrant going through a full trial. And the reason why this is permissible under the provisions of the CJA is because the determination of the preliminary point has the effect of disposing of the rights of the parties finally [70] This also aligns with the purpose and object of the Act which is to ensure an expeditious disposal of the cause or matter. It does not align with the purpose of the Act to go through a full hearing of a cause or matter where that cause or matter can be determined preliminarily on a point of law. [179] The essential basis of the defendants' striking out application is a challenge to the locus standi of the Respondent/Plaintiff. They argue that the damage suffered is to Pan and therefore the Respondent/Plaintiffs do not possess the right to sue [181] At face value therefore, this is a question of whether the Respondent/Plaintiff fulfils the threshold requirement of locus standi. This is, as stated, a threshold requirement that the Respondent/Plaintiff must fulfil in order for the suit to be brought" [182] As explained by the Court of Appeal in Bumiputra Commerce Bank Bhd v Augusto Pompeo Romei & Anor [2014] 3 MLJ 672, and indeed as relied on by the Appellant/Defendants before the High Court, a court will not have jurisdiction to determine the issue where a party does not have locus standi. The court held at para [25]: Where a party does not have the locus standi to bring an action, the court will not have the jurisdiction to determine the issue ..."

In AMBANK (M) BERHAD V. HERMIE MOHD TAHIR [2024] CLJU 190, the High Court, held: "[26] What is most important for the trial judge to deal with at the beginning of her finding is to firstly resolve the issue of locus standi of the Appellant / Defendant / Respondent / Plaintiff before her. This was an issue that had been raised repeatedly by the Respondent/Respondent/Plaintiff/Defendant in his pleadings. Although she mentioned this issue in paragraph 7 of her Grounds of Judgment, but the trial judge decided to do so in a mere one-liner. She concluded that there was no necessity for her to address the issue because she concluded that the common issues to be tried as agreed by parties is whether the Respondent/Respondent/Plaintiff is liable to pay the amount claimed by the Appellant/Defendant. At the end of her Grounds of Judgment, the learned trial judge concluded that as she found that the Appellant/Defendant's claim cannot be sustained - grounded solely on the nonavailability of the Certificate of Indebtedness - there is no necessity for her to answer the issue on the Appellant/Defendant's locus raised in the defence or any other issues for that matter. This is fundamentally flawed. The learned trial judge has erred when she decided to deal with the issue of liability without first dealing with the preliminary and vital issue on the Appellant/Defendant's locus." [27] She must be satisfied that the Respondent/Plaintiff is legally entitled to make the claim against the Defendant. Once that threshold is passed, only then she can proceed to deal with the rest of the issues before her. If the answer to that first question is in the negative then the Respondent/Plaintiff's claim must be dismissed in limine. She can only do so if she is appraised with the complete documents and evidence. [28] The Respondent/Respondent/Plaintiff never denied he took up a loan of about RM500,000.00 for the purchase of the Apartment. But the Respondent/Respondent/Plaintiff denies that he took up that loan or facility from the Appellant/Defendant. He pleaded that the loan and contract was between him and TM and not with the Appellant/Defendant."

The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.

The doctrine was developed further in Dunlop Pneumatic Tyre V. Selfridge And Co. Ltd. [1915] AC 847 through the judgment of Lord Viscount Haldane. The House of Lords held that Dunlop could not claim damages from Selfridge for selling below its resale price because it had no contractual relationship. Viscount Haldane, said there were three principles: "First, the doctrine of privity requires that only a party to a contract can sue. Second, the doctrine of consideration requires a person with whom a contract not under seal is made is only able to enforce it if there is a consideration from the promisee to the promisor. Third, the doctrine of agency requires that a principal not named in the contract (an undisclosed principal) can only be sued if the promisor was contracted as an agent." Analysis The Respondent/Plaintiff never paid the alleged RM200,000.00

The Respondent/Plaintiff commenced a civil action seeking recovery of RM200,000.00 alleged to be the "balance earnest deposit" paid to the Appellant/Defendant in relation to a proposed sale and purchase of Malay Reserve land known as GM 2087, Lot 5358, Mukim Bentong, Pahang. See: Enclosure 5 pages 101-103 - "Temporary Receipt (For Sale)" dated 1.3.2023 between R. Abdul Wahab and Mohamad Salleh Bin Ismail

The Appellant/Defendant's position, consistently maintained from the outset, is that, the documentary record before this Court demonstrates, with unmistakable clarity, that the Respondent/Plaintiff did not make the alleged payment of RM200,000.00 to the Appellant/Defendant.

The cheque relied upon by the Respondent/Plaintiff Public Bank Cheque No. 052290 dated 1.3.2023was issued by Thevan Realty, not by the Respondent/Plaintiff. The cheque was drawn from Thevan Realty's client account and expressly stated to be a payment made on behalf of R. Abdul Wahab, the individual purchaser named in the Temporary Receipt for Sale. See: Enclosure 5 page 105 - Payment of RM200,000.00 by R.Abdul Wahab to the Appellant/Defendant

At no point has the Respondent/Plaintiff produced any bank transfer slip, cheque counterfoil, remittance advice, receipt, acknowledgment, or contemporaneous record evidencing that the Respondent/Plaintiff itself remitted RM200,000.00 to the Appellant/Defendant.

In the absence of such proof, the Respondent/Plaintiff's assertion of payment is not merely unproven, it is contradicted by the very documents it relies upon. The Respondent/Plaintiff who did not make the alleged payment cannot maintain an action to recover it and this failure is fatal to the Respondent/Plaintiff's standing.

As the Court of Appeal held in Bumiputra-Commerce Bank v Augusto Pompeo Romei (2014) 3 MLJ 672, a party who is not privy to the impugned transaction lacks locus standi, and such absence of standing is fatal to the court's jurisdiction.

In our instant appeal, the Respondent/Plaintiff did not make the alleged payment and therefore has no legal interest capable of supporting a cause of action. The claim collapses at the threshold. The Only Party Who Dealt with the Appellant/Defendant was R. Abdul Wahab

The contemporaneous documents and the undisputed factual matrix demonstrate that every aspect of the transaction relating to the subject land was undertaken exclusively between the Appellant/Defendant and R. Abdul Wahab.

No evidence whether documentary, oral or circumstantial places the Respondent/Plaintiff within the chain of dealings. The Temporary Receipt for Sale dated 1.3.2023 (Exh. MSI-2) identifies only two parties: the Appellant/Defendant as Vendor and R. Abdul Wahab as Purchaser. This document forms the contractual nucleus of the transaction and is the clearest expression of the parties' intentions.

In accordance with the principle in Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16, where the written instrument is clear and unambiguous, the court must give effect to its express terms and cannot import extraneous parties into the contractual relationship. The evidence further shows that it was R. Abdul Wahab, and no other, who: i. negotiated the terms of the proposed sale; ii. executed the Temporary Receipt for Sale as the sole purchaser; iii. procured the RM200,000.00 earnest deposit through Thevan Realty; iv. issued the subsequent cheques for RM220,000.00 and RM500,000.00 forming part of the 10% deposit; v. undertook the contractual obligations relating to the RM6 million purchase price, including the proposed transfer of the Kuala Lumpur property forming part consideration.

These acts constitute unequivocal conduct consistent with the principle of privity of contract, which holds that contractual rights and obligations arise only between the parties who have expressly undertaken them.

At no material time was the Respondent/Plaintiff present in any communication, negotiation, contractual documentation, or payment trail. The Respondent/Plaintiff's name appears in none of the operative documents. There is no letter of nomination, no assignment, no agency instrument and no acknowledgment by the Appellant/Defendant recognising the Respondent/Plaintiff as purchaser, nominee or principal.

The Respondent/Plaintiff's attempt to rely on solicitor correspondence to retrospectively insert itself into the transaction is legally untenable.

As held in Cipta Cermat Sdn Bhd v Perbadanan Kemajuan Negeri Kedah [2007] 1 CLJ 498, solicitor-to-solicitor discussions cannot, without the client's express authority and execution, create contractual obligations or alter the identity of the contracting parties. The law does not permit a stranger to a contract to acquire rights or standing merely through unilateral assertions or draft documents prepared without the other party's assent.

The Respondent/Plaintiff's audited financial statements for the financial year ending 31.8.2023 (Exh. MSI-10) are wholly devoid of any entry, ledger, note, or disclosure reflecting the alleged payment of RM200,000.00 to the Appellant/Defendant.

There is no accounting record of an earnest deposit, no classification of the sum as an asset, no recognition of a receivable, and no impairment or write-off relating to the alleged transaction.

In commercial reality, a payment of RM200,000.00 particularly by a company with minimal capital would constitute a material transaction requiring disclosure under standard accounting principles. Its complete absence is therefore highly probative.

The Respondent/Plaintiff's financial statements further reveal that it is a dormant company with a paid-up capital of RM2.00 and with no operational revenue or financial activity capable of supporting a RM6 million land acquisition or even the alleged RM200,000.00 deposit. This financial incapacity is not merely relevant, it is directly inconsistent with the Respondent/Plaintiff's pleaded case.

Locus standi requires the Respondent/Plaintiff to demonstrate that it is the party who suffered the alleged loss. A company with no financial capacity and no accounting record of the alleged payment cannot, as a matter of law and fact, assert that it made such payment or suffered such loss. See: MT Ventures Sdn Bhd v QM Print Sdn Bhd [2025] 6 MLJ

In Theow Say Kow @ Teoh Kiang Seng v Teoh Khian Guan & Ors [2025] CLJU 2001 the facts of the case are as follows:- "2. All three striking out applications are made under Order 18 rule 19 (1) (a) of the Rules of Court 2012. To wit, the writ and statements of claim discloses no reasonable cause of action. The striking out applications are premised on the ground that P has no locus standi to bring this action

On 27.5.2025, I allowed the striking out applications and struck out P's suit herein. Here are the grounds of my decision

Applying these legal principles, it is my finding that P's claim against the Defendants is obviously unsustainable. P's action has no chance of success. Hence, this is a plain and obvious case for striking out. The reason is because P does not have locus standi to commence these proceedings against the Defendants

The question of locus standi is a threshold issue. If the court finds that the plaintiff has no standing in law to sue the defendant, then the action fails in limine and there is no inquiry into the merits of the case."

In the case of K Ramalingam a/l Krishnamoorthy & Ors v Subramaniam a/l Sathasivam & Ors [2017] 8 MLJ 36, where the High Court Judge allowed the striking out application and held as follows:- "Diputuskan, membenarkan pembatalan permohonan: (1) Atas alasan locus standi sahaja, disebabkan oleh plaintiff bukanlah lagi ahli MIC, guaman mereka sepatutnya dibatalkan tanpa mahkamah perlu untuk mendengar kes pada meritnya. Plaintif hanyalah semata-mata 'busybodies' tanpa apa hak sekalipun, dan oleh itu telah menyalahguna proses kehakiman...

Memandangkan plaintiff bukanlah lagi ahli MIC, itu disusuli yang mereka tidak lagi mempunyai apa-apa kata dalam perkara MIC. Relif yang mereka pohon menunjukkan bahawa jika pun mahkamah akan membenarkan mereka, plaintiff tidak berada dalam kedudukan untuk menikmati hasil daripada tindakan undang-undang mereka. Relif itu, jika diberikan, tidak boleh secara restrospektif memberi keahlian dalam MIC kepada plaintiff. Ini adalah tindakan baru untuk mengetepikan keputusan dalam JR 37 dan JR 39 dan untuk memulakan apa-apa tindakan baru plaintiff pertama sekali hendaklah merupakan ahli MIC untuk memberikan mereka locus standi yang diperlukan. la adalah perlu untuk plaintiff untuk terus menjadi ahli MIC daripada masa konspirasi dan salah laku yang dikatakan sehingga tarikh terkini untuk membolehkan mereka untuk mengekalkan guaman ini (lihat perenggan 30) Penyata tuntutan plaintiff tidak mendedahkan apa-apa kausa tindakan munasabah. Elemen konspirasi yang dikatakan tidak cukup dibutirkan dan tidak juga ia menunjukkan bagaimana plaintiff mengalami kerugian dengan demikian. MIC dan lainlain orang yang berkepentingan atau sesiapa yang boleh terjejas dengan keputusan guaman tidak dijadikan pihak dalam tindakan. Tanpa percantuman orang-orang itu, relif deklarasi yang dipohon oleh plaintiff melanggar peraturan keadilan asasi. Defendan pertama dan keenam kesemuanya disaman dalam kapasiti peribadi dan bukan sebagai pemegang jawatan atau wakil MIC (lihat perenggan 40, 63, 66 & 73).”

Thus, the Respondent/Plaintiff's failure to produce any contemporaneous financial record of the alleged payment whether in the form of bank statements, ledgers, vouchers, or audit notes triggers the operation of section 114(g) of the Evidence Act 1950, which permits the court to draw an adverse inference against a party who withholds evidence that would naturally be expected to be produced.

The absence of any accounting trace of a transaction of this magnitude coupled with the Respondent/Plaintiff's dormant status strongly supports the conclusion that the Respondent/Plaintiff never made the alleged payment. Here, the Respondent/Plaintiff's own audited accounts contradict its pleaded case and confirm that it neither paid nor was capable of paying the alleged RM200,000.00. The Respondent/Plaintiff's own submissions contain damaging admissions

The Respondent/Plaintiff's narrative collapses under the weight of its own documents. The very materials it relies on demonstrate that Odd Market was never the contracting party, never the payer, never the recipient of the alleged refund and never the holder of the post-dated cheques. These internal contradictions fatally undermine credibility and extinguish any claim to locus standi.

Where a party does not have the locus standi to bring an action, the court will not have the jurisdiction to determine the issue. In the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1 MLJ 719; [1995] 3 CLJ 520, the Court of Appeal held as follows: "Viewed from this standpoint, the justice of a case will ordinarily lie in favour of permitting a plea of illegality to be taken for the first time on appeal because it is unjust that a party who has broken the law should succeed. Similarly, justice would, in the usual way, favour the admission of a point that goes to the jurisdiction of the trial court because neither consent nor waiver may confer jurisdiction where none exists: and it is not in the interests of justice that a judgment of a court lacking jurisdiction should be permitted to stand." A. The Respondent/Plaintiff's reliance on "part payment of RM420,000.00" is self-defeating

The Respondent/Plaintiff repeatedly asserts that there was a "part payment of RM420,000.00". Yet: - None of the payment documents identify Odd Market as the payer. The absence of Odd Market's name on the payment instruments is not a minor omission; it is a substantive evidential failure. In commercial litigation, the identity of the payer is foundational to establishing privity and standing. - The Respondent/Plaintiff offers no explanation for why a third party allegedly paid on its behalf. This court consistently require clear evidence when a party claims to have acted through another entity. Silence on this point invites the inference that the Respondent/Plaintiff was not involved in the transaction at all.

If Odd Market did not make the RM420,000.00 payment, it cannot assert rights arising from that payment. This goes directly to locus standi and cause of action. B. The "post-dated cheques" narrative collapses upon scrutiny

The Respondent/Plaintiff's own submission refers to "post-dated cheques issued by the Appellant/Defendant". However: - The cheques were never delivered to Odd Market. Delivery is essential. A cheque that is never delivered is legally inert. It creates no rights, no obligations and no enforceable expectation. - The Respondent/Plaintiff cannot rely on instruments it never possessed. The law does not permit a party to assert contractual or restitutionary rights based on documents that were never in its custody or control.

The Respondent/Plaintiff's reliance on undelivered cheques is not merely weak, it is legally irrelevant. It demonstrates that the Respondent/Plaintiff is attempting to bootstrap standing from documents that never related to it.

This omission is not a trivial clerical gap; it is a substantive failure that goes to the core of privity and entitlement. In commercial disputes, the identity of the party who made the payment is a primary fact that must be established before any rights can arise from it. C. The RM220,000.00 "refund" was made to Thevan Realty, not Odd Market

This is the most damaging admission. - The Respondent/Plaintiff's own evidence shows that the alleged refund was paid to Thevan Realty. - If Odd Market were the true contracting party, the refund would logically and legally have been made to Odd Market. - The Respondent/Plaintiff offers no explanation for why a refund would bypass the supposed contracting party. - This inconsistency is incompatible with the Respondent/Plaintiff's narrative and strongly suggests that Thevan Realty not Odd Market was the actual party to the transaction.

A refund made to a third party is compelling evidence that the Respondent/Plaintiff was never the party with rights or obligations under the alleged arrangement. This directly negates locus standi. D. The cumulative inconsistencies destroy credibility and locus standi

When the evidence is examined in its totality, it becomes clear that the Respondent/Plaintiff's narrative collapses under the weight of its own contradictions. i. Payments said to have been made by Odd Market were, on the documents, not made by Odd Market at all; ii. Cheques said to have been issued to Odd Market were never in fact delivered into Odd Market's possession; and iii. Refunds said to be due to Odd Market were demonstrably paid to an entirely different entity, Thevan Realty.

These inconsistencies are not incidental as they go to the very foundation of the Respondent/Plaintiff's asserted rights. A Respondent/Plaintiff who is unable to show that it paid any of the monies in question, received any of the instruments relied upon or held any entitlement to the refund cannot, as a matter of law, establish the requisite legal interest, proprietary connection or enforceable entitlement necessary to sustain standing in a civil claim.

The Respondent/Plaintiff's own documents therefore operate as admissions against interest, reinforcing the Appellant/Defendant's position that Odd Market is a stranger to the transaction. The Sessions Court Judge failed to address the threshold issue

The Sessions Court Judge's decision is vitiated by a failure to engage with the essential threshold question of locus standi. The judgment does not analyse whether: i. the Respondent/Plaintiff had any legal interest in the alleged transactions; ii. did not address the undisputed absence of payment by the Respondent/Plaintiff; iii. did not evaluate the Respondent/Plaintiff's own financial statements (which contradict its pleaded case); and iv. did not consider the doctrine of privity of contract, a foundational requirement under Malaysian contract law.

This omission constitutes a material misdirection. By neglecting to determine whether the Respondent/Plaintiff had any standing to sue, the learned Sessions Court Judge bypassed the gateway inquiry that conditions the entire cause of action. This failure renders the decision unsafe and justifies appellate correction. Whether the claim is obviously unsustainable, warranting striking out.

Applying the principles in Bandar Builder (supra) and Seruan Gemilang (supra), a claim is "obviously unsustainable" where: - the facts pleaded cannot possibly give rise to a cause of action, - the Respondent/Plaintiff lacks standing, - the claim is premised on a factual impossibility. Here: - The Respondent/Plaintiff did not pay the RM200,000.00. - The Respondent/Plaintiff was not a party to the transaction. - The Respondent/Plaintiff suffered no loss. - The Respondent/Plaintiff has no contractual or legal right to sue.

The claim is therefore plainly and obviously unsustainable and falls squarely within Order 18 rule 19(1)(a), (b), (c) and (d).

The Respondent/Plaintiff has failed to establish locus standi, has failed to demonstrate any contractual nexus with the Appellant/Defendant and has failed to prove that it paid the alleged sum of RM200,000.00. In the absence of evidence of payment, contractual privity or any cognisable legal interest, the Respondent/Plaintiff's claim is fundamentally defective.

With respect, the learned Sessions Court Judge erred in law and in fact in dismissing the Appellant/Defendant's striking-out application. The learned Judge failed to appreciate that the deficiencies in the Respondent/Plaintiff's pleadings and evidence were not curable by trial but were fatal at the threshold stage.

The Respondent/Plaintiff's claim is plainly and obviously unsustainable, discloses no reasonable cause of action and constitutes an abuse of the court's process.

The continued prosecution of such a claim would offend the principles articulated in Bandar Builder Sdn Bhd v United Malayan Banking Corp Bhd [1993] 3 MLJ 36, which emphasise that the court's process must not be used to pursue claims devoid of legal foundation.

This Court has carefully considered the record of appeal, the written and oral submissions of both learned counsel and the applicable principles of law. The Court now pronounces its orders. i. The appeal is allowed; ii. The Order of the Sessions Court dated 24 November 2025 is hereby set aside; iii. The Court directs that the Respondent/Plaintiff's Writ and Statement of Claim be struck out pursuant to Order 18 rule 19(1)(a),(b),(c) and (d) of the Rules of Court 2012. iv. The Respondent/Plaintiff shall pay to the Appellant/Defendant costs of RM3,500.00 in respect of this appeal. These shall be the orders of this Court. Date: 25.05.2026 NIXON ANAK KENNEDY KUMBONG Judicial Commissioner High Court of Malaya Kuala Lumpur PARTIES For the Appellant: Solicitor: Noor Farhah Binti Mustaffa Messrs Haeme Lew Solicitors for the Appellant Suite B1-26-7, The Soho Suites KLCC,20 Jalan Perak, 50450 Kuala Lumpur For the Respondent: Solicitor: George Varughese / Johan Mohan Abdullah / Wan Fazila Salmi Messrs Johan Arafat Hamzah & Mona Level 3, Safeguards Business Centre Lot 6, Jalan 225, Seksyen 51A 46100 Petaling Jaya Selangor Darul Ehsan