Nautilus Tug & Towage Sdn. Bhd. v 1. ) Dato Sri Suresh Emmanuel Abishegam (WA-22NCC-403-06/2024)

AND DATO’ SRI SURESH EMMANUEL ABISHEGAM [No.K/P: 601022-10-6345]

DATO’ AHMAD JOHARI BIN ABDUL RAZAK [No.K/P: 541129-06-5107]

AJAIB HARI DASS [No. Pasport Singapura: K2300065Z]

DATO’ ABD LATIFF BIN AHMAD [No.K/P: 580709-01-5925]

JAYA SUDHIR A/L JAYARAM [No.K/P: 670204-71-5781]

MAK LIN KUM [No.K/P: 730411-14-5445]

AHMAD LUTFI BIN ABDUL LATIFF [No.K/P: 860517-23-6623]

DATO’ SRI ABD RAHIM BIN JAAFAR [No.K/P: 610519-06-5459] DEFENDANTS GROUNDS OF JUDGMENT

The Appellants, the 1st and the 9th Defendants, have sought to strike out the Plaintiff’s / Respondent’s claim on the grounds that: -

Timor has no capacity to act in a derivative action on behalf of the company as he is no longer a director of the company.

(ii) Timor has no Locus Standi to act.

(iii) Timor has no sufficient interest in continuing with this claim against the Defendants in a derivative capacity.

It has been brought to the attention of this Court that Timor has since obtained an interim order that entitles to remain to be a director of the company before Justice Leong Wai Hong.

In view of the same, the said Defendants sought to withdraw the application with liberty to file afresh. The said application was not objected to by the Plaintiff / Respondent.

This Court after considering the application finds that the said application should be struck out without liberty to file afresh. The reason for this is simply because this claim has been set down for trial and dates have been fixed in September 2026 to October 2026. The Defendants are at liberty to raise this issue again at trial in its defence if Justice Leong Wai Hong finds that the Defendants proposition is correct and that Timor is no longer a director of the said company. This is subject to the pleaded case of the litigants. If it is shown that Timor has no locus standi, then this can be dealt with at trial.

I will not have the trial derailed simply because the litigants wish to undertake these proceedings in stages. It is best that this claim be heard on its merits once and for all.

I do not wish to prolong this suit further and directs that parties be ready for trial. This suit has been in this Court’s docket since June 2024 S/N KscLUJC6xkSdvs5IeuHc4w and should be disposed of within 9 months in accordance with the practice directions applicable to this case. I am also guided by the decision of Zakaria Yatim J in Bank Bumiputra (M) Bhd & Anor v Lorraine Esme Osman [1987] CLJ 472 where he held: - “The rules does not specify a time limit during which a party may apply to the Court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The Court, however, may allow an application to be made even after the pleadings are closed. But such an application must be refused after the action has been set down for trial. See The Supreme Court Practice 1985, Vol. 1, p. 304. Lorraine's present application to strike out the writ of summons in C138 must be refused as the case was set down for trial on two occasions. With regard to the similar application in C438, it is clear that application can be heard by this Court.”

Also refer to Blue Valley Plantation Bhd v Periasamy Kuppananan [2010] 4 CLJ 753.

The above position was also adopted by the Federal Court in Boo Are Ngor v Chua Mee Liang [2009] 6 CLJ 617. In this case, Zulkefli Makinudin FCJ held: - “[8] It is our view that O. 18 r. 19(1) of RHC 1980 does not specify a time limit during which a party may apply to the court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The court, however, may allow an application to be made even after the pleadings are closed. But such an application must be refused after the action has been set down for trial. (See the case of Bank Bumiputra (Malaysia) Berhad & Anor. v. Lorrain Esme Osman & Ors. [1987] 1 CLJ 572; [1987] CLJ (Rep) 472). Since the second suit has not been set down for trial, the defendant in the present case in our view can still apply to strike out the second suit on the ground of abuse of the process of the court.”

In view of the above I find that this application should be struck out without liberty to file afresh. The merits of Defendants defence will be dealt with at trial and all such issues may be raised if and when they are pleaded by the Defendants in this proceeding.

I make no finding on the issues raised by the Defendants. I repeat that the said Defendants are entitled to raise this defence at trial, subject to the caveat that they are bound by their pleaded case.

I also make such orders in accordance with my powers under Order 34 rule 1 to ensure that this case is dealt with through a just, expeditious and economical for the litigants. I find that it would be just, expeditious and economical that these issues be raised once and for all before this Court at trial. To allow the Defendants to raise this argument again in stages will delay this case unnecessarily and will cause the suit not to be disposed of economically and expeditiously.

I refer to the decision of Brown J in George Weston Ltd v Domtar Inc [2012] 354 DLR 121 where he held: - “Against this background current pressures and constraints facing this Court necessitates that judges find ways to manage civil litigation more efficiently, using their inherent powers, as well as the tools contained in Rules to ensure that the fundamental objective of a fair, fast and affordable final determination on the merit is met, and that intolerable delays in the adjudication of civil disputes do not become the norm. S/N KscLUJC6xkSdvs5IeuHc4w Such case management must focus on giving priority to two requests made by litigants of this Court: (i) to make final determination on the merits of their cases, and (ii) to adjudicate urgent requests from interim relief to preserve the status quo until a final determination can be made. If reasonable timely justice remains a goal of our public court system judges of our court hearing civil matters lack of the resources to spend much time on other civil matters, especially the unreasonable high number of process related interlocutory motion which our civil court system.”

I therefore strike out the Notice of Motion without liberty to file afresh. This matter has been set down for trial and will be dealt with appropriately at the said juncture. Dated 26th May 2025 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya at Kuala Lumpur NCC5 S/N KscLUJC6xkSdvs5IeuHc4w Counsel: Lim Chee Wee, together with Wee Hee, Kuljeet Kaur Sidhu Brar a/p Kulwindar Singh and Emily Ho Mei Li For the Plaintiff Jasper Hee Partnership Advocates & Solicitors Kanarasan Ghandinesan together with S Ramesh For the 1st & 9th Defendant