Oliver Yap Chee Fong v Tracy Tan Wai Mei (WA-22NCvC-285-05/2025)

This is the Defendant’s application vide Enclosure 8 pursuant to Order 18 rule 19(1)(a) of the Rules of Court 2012 (“ROC 2012”) to strike out the Plaintiff’s Writ and Statement of Claim on the grounds that the pleadings disclose no reasonable cause of action. 17/11/2025 14:41:08 WA-22NCvC-285-05/2025 Kand. 16 S/N poW5oWgkkehPudg3Dv07w

The Plaintiff apposed the application.

Having considered the pleadings, the parties’ written submissions, and the applicable legal principles, this Court allows the Defendant’s application for the following reasons stated in this Grounds of Judgment.

By a Statement of Claim dated 6 May 2025, the Plaintiff avers that he opened a bank account with Hong Leong Bank in March 2020 and thereafter handed the bank card to his cousin, one Abel Ong.

The Plaintiff pleads that the said bank account was subsequently utilised by Abel Ong and the Defendant in connection with a purported cryptocurrency investment scheme involving unnamed third-party investors.

The Plaintiff asserts that the investment failed, leading to losses amounting to RM1,000,000.00, which the Plaintiff now seeks to recover from the Defendant.

The essence of the Plaintiff’s pleaded case is that the Defendant and Abel Ong conspired to defraud the investors and that the funds channelled through the Plaintiff’s bank account were lost due to the Defendant’s wrongdoing. S/N poW5oWgkkehPudg3Dv07w

The governing provision is Order 18 rule 19(1)(a) ROC 2012, which empowers the Court to strike out any pleading that discloses no reasonable cause of action.

It is trite that in an application under this limb, the Court is confined strictly to the pleaded Statement of Claim and must assume the pleaded facts to be true. (Bandar Builder Sdn Bhd v

The jurisdiction to strike out is a draconian one and should be exercised sparingly. Nevertheless, where the pleading is plainly unsustainable in law and discloses no tenable cause of action, the Court ought to intervene at an early stage to avoid unnecessary trial expenditure. (Tan Poh Yee v Tan Boon Thien & Ors [2017] 3 MLJ 244)

The sole question for determination is whether the Plaintiff’s pleadings disclose a reasonable cause of action in law.

Absence of Pleaded Loss S/N poW5oWgkkehPudg3Dv07w

The pleaded facts, taken at their highest, reveal that the alleged losses were suffered by third-party investors, and not by the Plaintiff himself.

Nowhere in the Statement of Claim does the Plaintiff assert that the monies belonged to him, that he suffered any quantifiable financial loss, or that he incurred any legal liability to compensate the third-party investors.

The Plaintiff, in effect, seeks to recover losses said to be suffered by unnamed investors. Such a claim is connected to the doctrine of locus standi and the principle that only a party who has suffered actionable loss may maintain a civil claim.

In the context of conspiracy, the absence of pleaded personal loss is fatal. According to the case of Quah Kay Tee v. Ong and Co Pte Ltd [1997] 1 SLR 390, a conspiracy by unlawful means is constituted when two or more persons combine to commit an unlawful act with the intention of injuring or damaging the plaintiff, and the act is carried out and the intention achieved.

Meanwhile, in a conspiracy by lawful means, there need not be an unlawful act per se committed by the conspirators. But, there is an additional requirement of proving a "predominant purpose" by all the conspirators to cause injury or damage to the Plaintiff, and the act is carried out and the purpose achieved. S/N poW5oWgkkehPudg3Dv07w

It must be understood that the basic principle in civil action is that the parties are bound by the four corners of their pleading in order to ensure procedural fairness that the Defendant should be reserved the opportunity to meet the case brought forward against him.

Therefore, if a party claims for conspiracy against another party, it is essential that the claimant’s pleading properly set out every single particular or details as to the type of conspiracy involved, how the conspiracy is committed, its extent, the whole narrative and the consequences or injuries suffered by the claimant pursuant to the act of conspiracy committed by the other party.

In the case of Renault SA v. Inokom Corp Sdn Bhd [2008] 3 MLRA 504; [2010] 5 MLJ 394; [2010] 5 CLJ 32, the Court of Appeal held that: "[48] Just as fraud must be pleaded with great particularity, so must the constituent ingredients of the alleged conspiracy by TC. Euro be pleaded."

Renault’s case has stated four (4) main elements to fulfil in a claim for conspiracy as follows: "[32] In regard to the tort of conspiracy, the following need to be satisfied at this interlocutory stage: S/N poW5oWgkkehPudg3Dv07w

an agreement between two or more persons (that is an agreement between Tan Chong and others);

an agreement for the purpose of injuring Inokom and

the acts done in execution of that agreement resulted in damage to Inokom and Quasar;

Damage is an essential element and where damage is not pleaded the statement of claim may be struck out."

Hence, the Plaintiff’s failure to plead clearly and properly will cost the pleading to be considered as bad and embarrassing. The Plaintiff has to bear in mind that the pleading may be struck out as well.

In the case of Satchithanantham v. Zaeiter Corporate Holdings Pty Ltd [2011] NSWC 1609, the court decided that: "[53]....If it is a common law pleading of conspiracy, the pleading does not identify what is the precise agreement which constitutes the alleged conspiracy. Nor does it make clear whether the alleged conspiracy was one to use lawful or unlawful means. The ASOC is embarrassing and should be struck out as against the first and second defendants."

Hence, the Court is of the opinion that a claim for conspiracy is equal to that of fraud causing such claim to be pleaded very distinctly and properly. Therefore, the Court believes that in order S/N poW5oWgkkehPudg3Dv07w for a claim of conspiracy to be successful, it relies entirely based on the pleading. The failure to plead, is a call for a bad pleading and must be avoided.

Not a Case for Trial on Facts

Although the Plaintiff submits that this matter ought to proceed to trial due to alleged factual disputes, the Court reiterates that for an application under Order 18 rule19(1)(a), the inquiry is strictly confined to pleadings.

A trial cannot cure a pleading that fundamentally discloses no cause of action. To compel the Defendant to undergo a full trial process in such circumstances would undermine procedural justice and judicial economy. F.

In light of the foregoing reasons, this Court is satisfied that the Plaintiff’s Statement of Claim discloses no reasonable cause of action against the Defendant.

Accordingly, the Defendant’s application under Order 18 rule 19(1)(a) ROC 2012 is allowed. The Plaintiff’s Writ and Statement of Claim are hereby struck out with costs of RM3,000 to be paid to the Defendant. S/N poW5oWgkkehPudg3Dv07w

Although the Plaintiff’s claim is struck out, the Defendant’s Counterclaim remains in existence, as a counterclaim stands as an independent proceeding under Order 15 rule 2 of the ROC

The matter shall therefore proceed solely on the Counterclaim.

The parties are directed to attend before the Deputy Registrar for further case management dates accordingly. Dated: 17th November 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Plaintiff : Ho You Wei & Diana Sharma Messrs. Rajesh, Chew & Ho Advocates & Solicitors Counsel for The Defendant : Azizul Hilmi Bin Zulkifli Messrs. S. Suresh Law Chambers Advocates & Solicitors S/N poW5oWgkkehPudg3Dv07w