Paint Marketing Co (M) Sdn Bhd v 1. ) Ng Fatt Chuan (BC-A52NCC-32-09/2024)

NG FATT CHUAN (I/C NO.: 620929-06-5311) [Didakwa sebagai pemilik tunggal yang berniaga Di bawah nama dan gaya AGENSI PEMASARAN SAYAP

BIBI NUR BINTI KHAIRUL TAN @ TAN CHAI LONG (I/C NO.: 740624-14-5376) ... DEFENDANTS JUDGMENT [1] The Plaintiff filed an application under Order 18 rule 19(1) (a), (b) and/or (d) of the Rules of Court 2012 (ROC 2012) to strike out the Defendants’ amended counterclaim at paragraphs 22 to 29 (Enclosure 33). [2] This Court had on 2 May 2025 allowed the Plaintiff’s application with costs and ordered that the Defendants’ counter claim at paragraphs 22 to 29 (Enclosure 33) against the Plaintiff be struck out with costs. Facts of the case [3] This is a goods sold and delivered case where the plaintiff and a related company had sold and delivered Nippon paints to the first defendant. The purchase order was made through credit account which was approved upon the defendants’ request. The purchase orders were made to Nippon Paint Sdn Bhd and the plaintiff acted as the party who delivers, provides and sells the order/goods to the first defendant. [4] The defendants have failed to settle the amount owing to the plaintiff, RM 170, 450.59 despite reminders and notice of demand sent by the plaintiff’s solicitor. The defendants then filed his defence and counter claim against the plaintiff alleging that the plaintiff was unjustly enriched in the sums of RM56, 639.00 which the defendants claim was paid to the plaintiff based on alleged misrepresentation, manipulation, false claim and fraud committed by the plaintiff together with the defendants’ own employees or agents. [5] The defendants have also asserted that the plaintiff’s actions have damaged the defendants’ reputation as the outstanding debt was reflected in the CTOS database, resulting in the defendants purportedly suffering losses of approximately RM500,000.00. The Law on Order 18 Rule 19 of the Rules of Court 2012 [6] The inherent power of the Court under O. 18 r. 19 of the Rules of Court 2012 should be exercised sparingly. It is aimed at culling actions in plain and obvious cases, i.e. where there is no reasonable cause of action, to avoid an unnecessary trial or if the claim is frivolous, vexatious or an abuse of Court process, or if the defence is unarguable. The power of the Courts under the four grounds of this rule is exercised when it can clearly be seen that a claim or answer is prima facie obviously unsustainable. (See Bandar Builders Sdn Bhd & Ors v. United Malayan Banking Corporation Berhad [1993] 3 MLJ 36, SC; Azlin bin Khalid v. Mohamad Najib Ishak and other appeals [2017] 6 MLJ 537, CA). [7] It follows that if it can be shown that the pleadings raised some questions fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal. (See Sivakumar a/l Varatharaju Naidu v. Ganesan a/l Retanam [2011] 6 MLJ 70, CA). Fraud and Misrepresentation [8] On the allegation of fraud and/or misrepresentation, it is trite law that it must be specifically and sufficiently pleaded. Full and proper particulars must be furnished in the pleadings so that the opposing party is fully apprised of the case that it has to meet. In Rokiah bt Suhaili v Emily Batu ak Bagang & Ors [2014] 7 MLJ 452, the High Court held that Order 18 r 12(2) provides that particulars of fraud or misrepresentation must be given in the pleading. Further, in Lee Kim Luang v Lee Shiah Yee [1998] 1 MLJ 193, the Court held that general allegations are insufficient to amount to an averment of fraud. It was held as follows: “Order 18 rule 12, R.H.C., governs the pleadings in this case although the pleadings were filed under the old R.S.C. 1957 (see Order 1, rule 2(1)) and the rule is that particulars have to be given of the fraud pleaded. In this case, however, there is merely a general allegation of fraud and the pleadings stand mute as to the circumstances relied upon as constituting the alleged fraud. A general allegation of fraud is insufficient even to amount to an averment of fraud of which any Court ought to take notice: Wallingford v. Mutual Society.” [9] The High Court in Malayan Banking Bhd v Lim Tee Yong & Ors [1994] 3 MLJ 715 had also held that if the particulars of fraud set out in the pleading were vague and general, such a claim and/or defence is inherently improbable. It was held as follows: “It is my view that the so-called particulars of fraud as set out in the statement of defence are vague and general. For one thing, even the name of the bank manager (alleged to be in collusion with the first defendant) was not given. Then again, what was the alleged false representation, and by whom and to whom was the false representation made? Such vague and general averments of fraud are insufficient as a defence. Indeed, they serve no purpose at all. On this point I find support in the passages in the judgments of Lord Selborne LC and Lord Hatherley in Wallingford v Mutual Society (1880) 5 App Cas 685.” Analysis and Finding [10] It is pertinent to note that the issues requiring determination in amended counterclaim is unsustainable and ought to be struck out. The issues of fraud and misrepresentation raised by the defendants in their amended counter claim did not reveal the particulars of the fraud and the misrepresentations. No name of the persons involved in the collision of fraud and misrepresentation were given or mentioned in the affidavit. More so, even the particulars of the event as to how and when they were made and also what had transpired to the alleged of the fraudulent payment of RM56,

639.00 were not given in detail. [11] Based on the cases cited above, such vague and general averments of fraud are insufficient as a defence and did not serve any purpose. Therefore, in the absence of the details and particulars, I believe that the defendants’ pleadings in their counterclaim are defective and unsustainable. [12] It is also important to note that no complaint or protest has been raised by the defendants, nor has it been exhibited in the affidavits when the payment made in 2022. The allegations which was made after two years have passed clearly shows that they were a mere afterthought. [13] Given that the defendants did not challenge or dispute the payments contemporaneously, they are estopped from taking a contradictory position now. (See Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 where the Federal Court recognized the flexibility of doctrine of estoppel and that a party’s conduct may give rise to estoppel.) Reference is also made to the case of Peransang Dagang Sdn Bhd v Tanjung Teras Sdn Bhd & Others [2007] MLJU 716, where the High Court held that a party’s conduct can estop it from later asserting a contradictory position. It was held as follows: “More often then not, the defendants would dispute the amount owing or even entering into any agreement with the plaintiff. On the agreement aspect, as mentioned above, the day to day document would collectively constitute a binding contract as well as the fact that the parties has been transacting for years and the defendant had been making payments. On the latter, failure to raise any objections as to the amount stated in the documents or imposition of interest despite the fact that parties had been transacting for years would give rise to a situation of ‘non query of account stated’. The non-query would estop the defendant from raising now any disputes that they could have raised earlier. Suriyadi J in Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 referred to the case of Syarikat Tan Thiam Siong Sdn Bhd [1983] 1 CLJ 256, also a case on goods sold and delivered, where the High Court held: “The law is that in the event of non-query of an account stated came into existence which created an estoppel against the defendant from querying the accounts thereafter. There are situations for example if there was fraud, where a query may be permitted but on the facts of the case, no such situation existed.”. Upon referring to the said case, Suriyadi J held further that: “Applying the above principles to the present case, it is undisputed fact that the plaintiff had sent statements of accounts to the first defendant and the first defendant had not questioned that plaintiff on the said accounts. This means that a situation of account-stated had arisen and the defendants are thereby estopped from now questioning the statement of accounts. So long as the transactions are properly documented and the plaintiff had regularly sent statement of accounts, the defendants would be estopped from subsequently raising any dispute…” [14] Further, the defendants have also alleged that the plaintiff’s claim had caused the defendants' debt to be reflected in the CTOS, resulting in reputational harm and losses of approximately RM500,000.00. The cumulative effect of O. 18 r12(1) and (2) of the ROC 2012 is that all relevant particulars in relation to special damages had to be pleaded. It is also a trite law that claim for special damages had to be specifically pleaded and particulars of the same must be provided in its pleading. [15] In the present case, it was clear that there were neither any particulars of special damage nor any prayer for special damages. No particulars or explanation were provided on the sum in the counter claim. It is obvious that therefore that this counter claim made by the defendants had not been specifically pleaded. Hence, the defendants' counter claim failed to disclose any reasonable cause of action against the plaintiff as there are no specific details against the plaintiff that disclosed a reasonable cause of action. [16] Based on the above reasons, on the balance of probabilities, I find that this case is an obvious case where the defendants have had no reasonable cause of action. The amended counter claim at paragraphs 22 to 29 filed against the plaintiff is frivolous, vexatious or an abuse of Court process. It is rightly that this Court exercises its inherent power when it can clearly be seen that the counter claim filed by the defendants is prima facie obviously unsustainable. [17] Therefore, I allowed the plaintiff’s application under Enclosure 33 and ordered that the defendants' amended counter claim at paragraphs 22 to 29 be struck out with costs of RM3,000.00. Dated 5 June 2025. tt (Fadzlin Suraya binti Mohd Suah) Sessions Court Judge Ampang Sessions Court Selangor Darul Ehsan.