Mohd Fakrunizam Bin Ibrahim v 1. ) Tetuan Hanif Abdul Rahman & Assoc. (Didakwa Sebagai Sebuah Firma) (WA-22NCvC-612-09/2021)

TETUAN HANIF ABDUL RAHMAN AND ASSOC.

RANHILL UTILITIES BHD (NO. SYARIKAT: 201401014973 [1091059-K]) (SEBELUM INI DIKENALI SEBAGAI RANHILL HOLDINGS BERHAD) …DEFENDAN-DEFENDAN

The 2nd Defendant applied to strike out the Plaintiff’s claim by virtue of Order 18 Rule 19 of the Rules of Court 2012 (“the Rules”).

Order 18 Rule 19 of the Rules states as follows:

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 07/12/2022 08:16:38 WA-22NCvC-612-09/2021 Kand. 42 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).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. Brief Facts

The Plaintiff’s claim against the 2nd Defendant is founded on a shares sale and purchase agreement dated 6/4/2017 as well as a supplemental sale and purchase agreement dated 4/7/2017 whereby the 2nd Defendant had agreed to purchase the Plaintiff’s share for a sum of RM21 million.

The dispute between the Plaintiff and the Defendant is with regards to a breach of the share sales agreement resulting in the Plaintiff receiving letter of demand form the 2nd Defendant’s solicitor for the return of RM7 million as a result of a breach of the supplemental agreement.

The crux of the Plaintiff’s claim against the 1st Defendant is that the 1st Defendant had misrepresented to him that the matter between the Plaintiff would be resolved amicably. The Plaintiff later on, receiving a notice of bankruptcy discovered that the 1st Defendant without his knowledge had allowed the 2nd Defendant to enter judgement against him resulting in the bankruptcy notice.

The Plaintiff therefore through this suit is seeking a declaration from this Court that the judgement obtained by the 2nd Defendant is not binding upon him and cannot be acted upon by the 2nd Defendant.

The 2nd Defendant’s contention in the application to strike out the Plaintiff’s claim is that the Plaintiff’s actual cause of action is against the 1st Defendant for misconduct. As such there is no cause of action against the 2nd Defendant as well as the Plaintiff’s claim is frivolous vexatious and an abuse of the process of court. Striking out

In determining the 2nd Defendant’s application for striking out the Court took note of the fact that the 2nd Defendant had obtained judgement by way of summary judgement applied by way of an application under Order 14 of the Rules. Therefore the matter was determined by way of affidavits.

The Plaintiff is disputing this very same affidavits by alleging that he did not prepare this affidavits filed on his behalf and neither did he authorise the preparation of the affidavits.

This are serious allegations which can only be resolved by way of a full trial by calling of witnesses and even maybe experts and documentary proof.

Although the main cause of action is against the 1st Defendant any ruling or decision by the Court will have a direct bearing on the regularity of the judgement obtained by the 2nd Defendant.

In short this is not a fit case to be struck out summarily under Order 18 Rule 19 of the Rules.

In the upshot the Court dismissed the 2nd Defendant’s application with a cost of RM3,000. Dated: 5.12.2022 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: C K Lim Law Chambers 12th Floor Bangunan Getah Asli (Menara) No. 148 Jalan Ampang 50450 Kuala Lumpur For the Defendants: Tetuan Godfrey D’cruz & Co Unit 721 7th Floor Block A