Rushoe Coating Resources Sdn Bhd v Advanced Innergy Contracting Ltd (JA-22NCvC-187-12/2024)

This is an application by the Defendant (D) (Enclosure 17) to strike out the whole of the Plaintiff’s (P) action under Order 18, Rule 19(1)(b), (c) and (d) of the Rules of Court 2012 (“ROC”).

After having heard the parties, this Court allowed Enclosure 17 with costs. 30/04/2026 01:21:17

This is the Court’s grounds of judgment. Salient facts

P entered into contract with MIE Industrial Sdn Bhd to carry out works known as ‘Fireproofing for Steel Works of Sphere Tank (“said works”) in a project undertaken between MIE Industrial Sdn Bhd and CTCI Corporation on joint ventures of the one part and PRPC Refinery & Cracker Sdn Bhd of the other part.

In order to carry out the said works, P had purchased intumescent paint known as Flexichar Ci20H (“paint”) from the Defendant (“D”).

Prior to the purchase of the paint, there was correspondence via email between both P and D where a mock-up demonstration of the paint was arranged. The mock-up demonstration was carried out by D on 09.01.2019.

Being satisfied with the demonstration, P subsequently purchased the paint from D through four (4) Purchase Orders for a total sum of USD 570,050.27 (“sales contract”).

D takes the position that the said sales contract is governed by the Terms and Conditions of Supply (Issue No.1 dated 13.02.2017) (“Terms and Conditions”) contained in a separate document. The said document has at all material time been in the possession of D but open for inspection by P.

P claims that they had then completed the said works.

However, upon inspection carried out by the other contracting parties for the said works, P had been requested to provide an explanation concerning issues pertaining to the paint.

Several site visits were conducted on 15.8.2020, 26.8.2020 and 9.9.2020.

P states that the paint purchased from D was not fit for its intended purposes due to the ‘tackiness’ of the paint. As a result, P incurred significant losses including but not limited to additional costs to rectify the defects in the said works.

Accordingly, P claims that D has breached its contract with P.

Hence, this instant action.

D meanwhile filed Enclosure 17 to strike out P’s action.

D in essence submitted that since the sales contract is governed by D’s Terms and Conditions of Supply (Issue No.1 dated 13.02.2017) therefore:

this court has no jurisdiction to try P’s action;

P’s claim against D is time-barred as the warranty period has expired;

that P had failed to comply with the notice requirements under the contract;

that P’s claims fall outside the scope of the sales contract; and

that P’s claims exceed the contractually agreed limits, thus, P’s claim should be struck out under O.18, r.19(1)(b), (c) and

of ROC. The law

Order 18 Rule 19 ROC 2012 states as follows:- “(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the 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.”

On the legal principles applicable when dealing with a striking out application, reference may be made to Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 where it was held by the Federal Court that:- “[26] The tests for striking out application under O. 18 r. 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia as follows: (a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; (b) 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); (c) 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 (d) 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 of the ROC; 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.”

The Federal Court in Seruan Gemilang further held that:- “[27] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75; [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following passage A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 (Federal Court)). [28] The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it must be ‘obviously unsustainable’. The stress is not only on the word ‘unsustainable’ but also on the word ‘obviously’ ie, the degree of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial.”

Reference can also be made to Tan Wai Hong & Ors v Malaysian Airlines System Berhad & Ors [2017] 4 MLJ 540 where it was held by the Court of Appeal as follows:- “[7] The Court will adopt the following as principles applicable to the consideration of an application to strike out pleadings and endorsements: a) In considering the defendants’ application under Order 18 rule 19(1)(a), no affidavit evidence is admissible; b) All the averments in the statement of claim must be assumed to be true; c) The Court should only exercise its powers sparingly and only in clear cases; d) The test to be applied is whether on the face of pleadings, the claim is obviously unsustainable. The matter must be unarguable or almost incontestably bad; e) The burden is on the defendants to show to the Court that the plaintiffs’ claim is so plain and obviously unsustainable or in other words, the plaintiffs’ claim is bound to fail at trial; f) Where there is a dispute as to the factual matrix of the case, the Court would not strike out the pleadings and endorsements; g) The power to strike out pleadings and endorsements should be exercised after the Court has considered all facts, but the Court must not embark a minute examination of the documents and the facts of the case as this is solely reserved for the trial judge; h) A pleading is “frivolous” or “vexation” when its discloses no reasonable cause of action on its face. The Oxford English Dictionary defines “frivolous” as follows: b Law. In pleading: Manifestly insufficient or futile. Black Law Dictionary, 9th ed. (Thomson Reuters, St. Paul, Minnesota, 2009), defines “frivolous” as “lacking a legal basis or legal merit; not serious; not reasonably purposeful…”; and “frivolous suit” as “ A lawsuit having no legal basis, often filed to harass or extort money from the defendant”. Among the definitions of “vexatious” and “vexation” in the Oxford English Dictionary are the following:

Causing, tending or disposed to cause, vexation. c spec Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant. And, “Vexation, the action of troubling or harassing by aggression or interference (sometimes spec by unjustifiable claims or legal action).” Black Law Dictionary defines “vexatious suit” as “a lawsuit instituted maliciously and without good grounds, meant to create trouble and expense for the party being sued”. i) The Oxford English Dictionary defines “abuse (of process) as (ii) wrong or improper use, misuse, misapplication, perversion; turning the wrong way, diversion to an improper use, corruption, distortion”. A pleading is an abuse of process if the litigation process is used for improper purpose; e.g., where the proceedings constitute a sham; where the process of the Court is not being fairly or honestly used, or is employed for some ulterior or improper purpose; j) In exercising the power under Order 18 rule 19(1)(d), the Court is not limited to considering the pleadings of the parties, but is entitled to consider affidavit relating to the issues in the case; and k) Where the Court is to exercise its inherent jurisdiction to dismiss a claim, it is important that there is no dispute between the parties on issues of facts.”

In the locus classicus case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 1 the Supreme Court had this to say:- “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19 (1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91) and 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" (Attorney-General of Duchy of Lancaster v. L. & N. W. Ry. Co [1892] 3 Ch. 274, CA). 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 defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA). The authorities further show that if there is a point of law which requires serious discussion, and objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 33 r. 2 Rules of High Court) (Hubbuck v. Wilkinson) (supra). 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.” Whether P’s claim is obviously unsustainable

Firstly, this Court agrees with D’s contention that the term “subject to its Terms and Conditions” as stipulated in the Order Acceptance Letters signed by P would suffice as a form of notice to P that the Terms and Conditions is applicable to the sales contract under the common law principle of ‘incorporation of standard terms in commercial contracts’.

In this regard, it must also be highlighted the D’s earlier quotation to P dated 28.2.2019 contains the following expressions: “This offer is made in accordance with Advanced Insulation’s standard terms and conditions of sale which is available on request.”

Upon perusal of the said Terms and Conditions, it is apparent that the sales contract between P and D is governed by the laws of England and Wales, contains a six-month warranty period, imposes strict notice requirements, and expressly excludes liability on the part of D for loss of opportunity and other consequential losses suffered by P.

Clause 36 of the said Terms and Conditions has clearly provided that the sales contract shall be governed by and construed in accordance with the laws of England and Wales.

It is trite law where parties have agreed that the contract shall be governed by, and construed in accordance with the law of certain named country, a strong prima facie case exists that the said country’s Courts shall have the appropriate jurisdiction to hear the matter. The burden thus is on P to show why the present action should proceed in Malaysia and not in the High Court of England and Wales [see: Donohue v Armco Inc and Others [2001] UKHL 64].

In Southern Acids (M) Bhd v Standard Chartered Bank (M) Bhd [2012] 2 CLJ 361 it was held that:- “The principal purpose of the non-exclusive jurisdiction clause is to determine the primary place of jurisdiction. By cl. 13, the parties had selected England to be the primary place of jurisdiction. The plaintiff by filing the suit in Malaysia had wantonly disregarded the non-exclusive jurisdiction clause.”

Clause 37 of the Terms and Conditions of Supply provides further clarity that P being the purchaser had irrevocably submitted to the jurisdiction of the High Court of England and Wales while D being a supplier in cross-border trade reserved expressly their right to enforce the contract elsewhere if required. In United Overseas Bank Ltd v United Securities Sdn Bhd (In Liquidation) & Ors [2021] 9 CLJ 593 the Court of Appeal held as follows:- “[22] Extrapolating the above two points, we were therefore inclined towards the interpretation that the non-exclusive jurisdiction clause meant that only UOB has the option to refer to other jurisdictions but not USSB. Such an interpretation is fortified by cl. 25.6 of the loan agreement where if UOB has selected Singapore as the forum, USSB irrevocably waives any claim that the venue so selected is not a convenient forum. ….. [24] This essentially meant that absent of the words "exclusive jurisdiction" did not necessarily mean the (English) courts did not have exclusive jurisdiction. This was because the juxtaposition of submission by the defendants to the jurisdiction of the English courts and the option to the bank to sue elsewhere suggested a similar option in favour of the defendants was intentionally omitted. This meant a clear intention that the defendants but not the bank would be obliged to submit its dispute to the (English) courts. [25] This would be the position in this instant appeal where UOB has the option to sue elsewhere but not USSB. This drives home the point that such an option was intentionally omitted from USSB which entailed it being obligated to refer to the Singapore courts.”

Based on the affidavit evidence proffered by P to this Court, this Court finds that P has failed to provide cogent materials to discharge the onus to satisfy this Court on why the instant action should be heard in the local courts. This Court is thus obliged to give effect to the aforesaid clauses 36 and 37 as that is what the parties had agreed. This Court therefore finds that the appropriate forum for this action is the High Court of England and Wales.

Next, P also contended that D by filing Enclosure 17 had in fact and in law submitted itself to the jurisdiction of this Court. For this contention, D relies on Order 12 Rule 10 ROC 2012 which states as follows :- “10. Dispute as to jurisdiction (O. 12 r. 10)

A defendant who intends to dispute the jurisdiction of the Court in the proceedings by reason of any irregularity as is mentioned in rule 9 or on any other ground shall enter an appearance and, within the time limited for serving a defence, apply to the Court for-

an order setting aside the writ or service of the writ on him;

an order declaring that the writ has not been duly served on him;

the discharge of any order giving leave to serve a notice of the the writ on him out of the jurisdiction;

the discharge of any order extending the validity of the writ for the purpose of service;

the protection or release of any property of the defendant seized or threatened with seizure in the proceedings;

the discharge of any order made to prevent any dealing with any property of the defendant;

a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject matter of the claim or the relief or remedy sought in the action; or

such other relief as may be appropriate.

A defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Malaysia is not the proper forum for the dispute shall enter an appearance and, within the time limited for serving a defence, apply to the Court for an order to stay the proceedings.

An application under paragraph (1) or (2) shall be made by notice of application supported by an affidavit verifying the facts on which the application is based and a copy of the affidavit shall be served with the notice of application.

Upon the hearing of an application under paragraph

or (2), the Court may make such order as it thinks fit and may give such directions for its disposal, as may be appropriate, including directions for the trial thereof as a preliminary issue.

A defendant who makes an application under paragraph (1) or paragraph (2) shall not be treated as having submitted to the jurisdiction of the Court by reason of his having entered an appearance and if the Court makes no order on the application or dismisses it, paragraph (6) shall apply as if the defendant had not made any such application.

Except where the defendant makes an application in accordance with paragraph (1) or paragraph (2), the appearance by a defendant shall, unless the appearance is withdrawn by leave of the Court under Order 21, rule 1, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.

Order 18, rule 2(1) does not apply to any defendant making an application under paragraph (1) or (2), unless the application is dismissed and, in which case, the defendant shall serve his defence within fourteen days after the dismissal of the application or within such other period as the Court may order.”

On the scope of Order 12 Rule 10 ROC 2012, reference can be made to JSB v ACSB [2024] 1 CLJ 382 where it has been held by the Court of Appeal as follows:- “[15] It should be stated at this juncture that O. 12 r. 10 is designed for setting aside the writ or service of the writ in a case where under O. 12 r. 9, the writ or the service of the writ is irregular or in any order giving leave to serve the writ out of jurisdiction or the extending the validity of the writ for the purpose of service. It has no application in this case whatsoever.”

From the above authority, this Court is of the view that Order 12 Rule 10 does not govern, restrict or setting conditions on D’s ability to maintain an objection on this court’s jurisdiction despite filing Enclosure 17.

At the same time, it is clear that any submission to jurisdiction requires conduct demonstrating clear and unequivocal election to proceed before this court and for D to abandon any objection on jurisdiction. Such position of the law can be distilled from the judgment of the Court of Appeal in Comos Industry Solution GMBH v Jacob & Toralf Consulting Letrikon Sdn Bhd & Ors [2011] CLJU 1770 where it was held that:- Whether an action amounts to a step in the proceedings is determined by the nature of the action and whether it indicates an unequivocal intention to proceed with the suit and to abandon the right to refer the dispute to arbitration. An application is not a step in the proceedings, if it does not express the willingness of the defendant to go along with the determination of the courts instead of arbitration. A defendant who has specifically stated in the application or supporting affidavit that he intends to seek a stay is not estopped from asserting his right to invoke arbitration. An application, which is made in the event that the specific application for a stay is unsuccessful, is not a step in the proceedings.

As such, this court finds that on jurisdictional point, P’s action herein is clearly frivolous and vexatious and an abuse of the process of the court and must hereby be struck out under O,18, r.19(1)(b),(c) and (d) ROC combined. Whether P’s claim is time barred

Assuming if the court is in error in striking out P’s action based on jurisdiction issue, it is also the finding of this Court that P’s claim is substantively time barred pursuant to Clause 10.1 of the Terms and Conditions where the warranty period is stated to be for a period of 6 months from delivery. This Court agrees with the submissions by D that once this period expires, there is no subsisting warranty obligation capable of breach.

The above reading of clause 10.1 is reinforced by clause 10.5 of the Terms and Conditions which provides that the remedies set out in clause 10 of the contract shall be the sole and exclusive remedy for all liabilities arising out of or in connection with clause 10.1 including any representation, warranty or undertaking given in connection with it.

P, in its own pleaded case states that the final delivery occurred on 28.7.2019, the warranty expired on 28.1.2020 and that the issues allegedly arising was first raised in August 2020. What is clear here by August 2020, the warranty obligations pursuant to clause 10.1 of the Terms and Conditions have already ceased to exist and thus the exclusive remedy provided for under clause 10.5 had closed. That being the case, there is no contractual duty capable of being breached by D and no legally available remedy remaining.

On this point, this court follows Mukand Ltd v Malaysia Steel Works (KL) Sdn Bhd [2010] 5 CLJ 282 where it was held by the Court of Appeal that:- [21] The defendant only lodged a complaint as to the quality of the Cranes and refused to pay the outstanding sums on 4 June 1998. As the alleged defects raised by the defendant were made outside the warranty period the plaintiff was accordingly not liable to make good the same. [22] Acceptance by usage was the most compelling evidence of acceptance. Failure to reject the Cranes within the warranty period affirmed that acceptance. [emphasis added]

Thus, on this time barred issue, P’s action is bound to be struck out under O,18, r.19(1)(b),(c) and (d) ROC combined. Remedies claim are expressly excluded in the Terms and

Finally, this Court agrees with D that P in the instant action had claimed among others for loss of opportunities to the tune of RM

1.7 Million which is specifically excluded by Clause 14.4 of the Terms and Conditions. To accede to P’s claim for loss of opportunity would thus tantamount to rewriting the contract which is not justified under law.

In this regard, reference is made to Hillas & Co v Arcos Ltd [1932] ALL REP (REP) 494 where the House of Lords held that:- “The document of 21 May 1930, cannot be regarded as other than inartistic, and may appear repellant to the trained sense of an equity draftsman. But it is clear that the parties both intended to make a contract and thought they had done so. Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is accordingly the duty of the Court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but on the contrary, the Court should seek to apply the old maxim of English law, verba ita sunt intelligenda ut res magis valeat quam pereat. That maxim, however, does not mean that the Court is to make a contract for the parties, or to go outside the words they have used, except in so far as there are appropriate implications of law, as, for instance, the implication of what is just and reasonable to be ascertained by the Court as matter of machinery where the contractual intention is clear but the contract is silent on some detail.”

Refer also to Australian Broadcasting Comission v Australasian Performing Right Association Ltd [1973] 129 CLR 99 (High Court) page 109:- “If the words used are unambiguous the Court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The Court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust.”

Thus, on this ground too, P’s action is bound to be struck out under O,18, r.19(1)(b),(c) and (d) ROC combined, and so I hold.

Based on the reasons as adumbrated above, Enclosure 17 is allowed with costs of RM 7,500.00 to be paid by P to D subject to allocator fee. Dated: …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru For the Plaintiff : Messrs Gobinath Karuppan 32-3A, Oval Damansara 685, Jalan Damansara 60000, Kuala Lumpur For the Defendant : Messrs Izad Kazran & Co IKC Reception @ A1-10-3A Arcoris Business Suites 10, Jalan Kiara, Mont Kiara 50480, Kuala Lumpur