Syarikat Rodziah v Malayan Banking Berhad (J-02(IM)(NCVC)-1371-07/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: J-02(IM)(NCVC)-1371-07/2018 ANTARA SYARIKAT RODZIAH (dibawa guaman sebagai suatu firma) … PERAYU DAN MALAYAN BANKING BERHAD (No. Syarikat: 3813-K) … RESPONDEN [Dalam perkara mengenai Notis Permohonan bertarikh 21.3.2018 (Lampiran 15) di dalam Guaman Sivil No. JB-22NCVC-53-08/2017 Dalam Mahkamah Tinggi Malaya di Muar Dalam Negeri Johor, Malaysia Antara Malayan Banking Berhad (No. Syarikat: 3813-K) … Plaintif Dan

1. Bahari And Co (No. Pendaftaran VE (2) 0255) (dibawa guaman sebagai suatu perkongsian)

2. Syarikat Rodziah (dibawa guaman sebagai suatu firma) … Defendan-Defendan yang diputuskan oleh Yang Arif Datuk Wira Halijah binti Abbas, Hakim Mahkamah Tinggi, di Mahkamah Tinggi Malaysia di Muar pada 3.6.2018] 2 CORAM: AHMADI HAJI ASNAWI, JCA ABDUL KARIM ABDUL JALIL, JCA SURAYA OTHMAN, JCA JUDGMENT OF THE COURT INTRODUCTION [1] The Appellant/2nd Defendant (Syarikat Rodziah) sued as a firm, filed an application for striking out of the Respondent/Plaintiff’s Malayan Banking Berhad) claim (“Enclosure 15”) on the basis that premised on the documentary evidence before the Court, it is apparent that the Plaintiff’s claim is scandalous, frivolous and vexatious and/or an abuse of process pursuant to Order 18, rule 19(1)(b), (c) and/or (d) Rules of Court 2012 (“ROC 2012”). Further, the Appellant/2nd Defendant contend that the Plaintiff’s claim against the 2nd Defendant is untenable and is an attempt to forum shop and issue switch. [2] The High Court on 3.6.2018 dismissed Enclosure 15, holding that the Plaintiff’s claim was not “obviously unsustainable”. The High Court is of the view that since parties are in the process of filing the documents in preparation for trial, including the relevant issues to be tried, and that since the claim by the Respondent/Plaintiff involves the allegation of negligence and fraud on the part of the Appellant/2nd Defendant, that this justifies that the claim should go for trial. 3 [3] We heard the appeal and having considered the Appeal Records and submission of parties, we unanimously allowed the appeal with costs. We now give our reasons for doing so. For ease of reference, parties will be referred to as they were in the High Court, the Appellant as the 2nd Defendant and the Respondent as the Plaintiff. BACKGROUND FACTS [4] The Plaintiff (Malayan Banking Berhad) is a licensed financial institution under the Financial Services Act 2013. It has its registered address at 14th Floor, Menara Maybank, 100, Jalan Tun Perak, 50050 Kuala Lumpur. The Plaintiff has a Business Centre at the 2nd Floor Bangunan Maybank, 84, Jalan Rahmat, 83000 Batu Pahat, Johor. The Plaintiff brought a claim against the 1st and the 2nd Defendant. [5] The 1st Defendant (Bahari and Co) is a partnership carrying out a practice of valuation and estate agency and is registered with the Board of Valuers, Appraisers and Estate Agents Malaysia. Its registration number is VE (2) 0255 and its business address is at Suite 1202, 12th Floor, Johor Tower, No. 15, Jalan Gereja, 80100 Johor Bahru, Johor. [6] The 2nd Defendant (Syarikat Rodziah sued as a firm), the Appellant in this appeal, is a firm of solicitors having its branch address at No. 30, Tingkat 1, Jalan Datuk Kapten Ahmad, 86000 Kluang, Johor. The 2nd Defendant was on the Plaintiff’s panel of lawyers. [7] The Plaintiff offers, inter alia, financing for the purchase of property including industrial buildings. 4 [8] The borrower, Sentosa Timber Trading Sdn Bhd (“STT”) approached the Plaintiff to obtain financing for, inter alia, the purchase of 2 units of 1½ storey detached industrial buildings at Taman Industri Sri Sulong and working capital (“Properties”). [9] The Plaintiff through Ms Saraswati Periasamy (“Ms Saraswati”) by a letter dated 26.3. 2015 (the “Letter of Offer”) approved and granted Banking Facilities to STT for the total sum of RM5.9 million (the “Banking Facilities”) to “part finance the purchase of 2 units of 1½ storey detached factory building in Sri Sulong Industrial Area” (“the Properties”). The relevant particulars of the Banking Facilities granted by the Plaintiff to STT in relation to the Properties are set out in Table A below: Table A No Description Date of Approval of Banking Facilities by the Plaintiff Banking Facilities Amount (RM)

1. 2 units of 1½ storey detached industrial building at :

1. Valuation (RM) No. 9 Jalan Sri Sulong 23/A Taman Perindustrian Sri Sulong, 83000

12. Batu Pahat Johor (Lot 13588)

4.2015 3,500,000.00

2. No. 11 Jalan Sri Sulong 23/A Taman Perindustrian Sri Sulong, 83000

14. Batu Pahat Johor (Lot 13589)

4.2015 3,500,000.00 [13] The Plaintiff contended that based upon and relying on the representation and/or valuations of the Properties provided by the 1st Defendant, the Plaintiff approved the Banking Facilities to the Borrower on 26.3.2015. 6 [14] By a letter dated 2.4.2015 (the “Letter of Instruction”), the Plaintiff through Ms Sarawasti notified the 2nd Defendant that STT “had been granted Banking Facility” and instructed the 2nd Defendant to prepare the necessary documents related to the Banking Facilities. The 2nd Defendant then prepared the loan documentations in relation to the Banking Facilities such as the Facility Agreements as per the Plaintiff’s instruction. [15] By a letter dated 20.4.2015, the 2nd Defendant advised the Plaintiff that it could release the Banking Facilities to STT if it was satisfied that STT had fulfilled all the necessary condition precedents. The Plaintiff proceeded with the same. [16] STT defaulted in payment of the loan and the Plaintiff filed a suit on 11.1.2016 for the recovery of the loan/debt from STT and its directors/ guarantors (“Recovery/Debt Action”). The Plaintiff was not able to recover the debt from STT and the directors. [17] The Plaintiff then filed a suit against the 1st and 2nd Defendants on 1.8.2017 for breach of contract, negligence, fraud and conspiracy. [18] The Plaintiff alleged that the valuations of the Properties were negligently and erroneously prepared by the 1st Defendant in that the 1st Defendant had grossly, deliberately and unreasonably inflated the market value of the Properties without any basis with intention to deceive and mislead the Plaintiff and consequently the 1st Defendant had committed fraud. 7 [19] The Plaintiff alleged that the 2nd Defendant, in its capacity as solicitors of the Plaintiff, had, inter alia, in breach of its retainer, wrongfully and recklessly advised the Plaintiff to release the Banking Facilities to STT through the 2nd Defendant’s letter dated 20.4.2015 without any proper verification in that the 2nd Defendant did not investigate and/or made inquiries and/or searches on the Properties. Consequently, the Plaintiff further alleged that the 1st and 2nd Defendant had conspired to commit fraud on the Plaintiff for the benefit and financial gain for themselves, STT, the directors and the vendor. [20] The 2nd Defendant then filed an application to strike out the Plaintiff’s claim (Enclosure 15) on 21.3.2018 which application was dismissed by the High Court on 3.6.2018, and hence this appeal. DECISION OF THE HIGH COURT [21] The High Court Judge (“learned Judge”) dismissed Enclosure 15 and found that there were triable issues that merit determination in a full trial. In gist, the learned Judge found that:

(ii) However, the learned Judge was ultimately of the view that the Plaintiff’s claim was not “obviously unsustainable”, as parties 8 had already filed documents in preparation for trial, including the relevant issues to be tried which in itself showed that witnesses would need to be called since the case against the 2nd Defendant involves the issues of fraud or negligence on the part of the 2nd Defendant. THE APPEAL 2nd DEFENDANT’S SUBMISSION Decision to grant Banking Facilities to STT was by the Plaintiff [22] The 2nd Defendant submitted that it was not involved in the Plaintiff’s decision - making process to grant the Banking Facilities to STT. The 2nd Defendant was only instructed by a letter dated 2.4.2015 (Letter of Instruction) to prepare the necessary documents for the Banking Facilities after the Plaintiff had approved and granted the Banking Facilities to STT. Creditworthiness of STT determined by Plaintiff [23] The 2nd Defendant contended that it was not involved in determining the creditworthiness of STT and its directors or guarantors. The Plaintiff had its own internal processes to scrutinize the application for the Banking Facilities and the granting of the same was ultimately decided by the Plaintiff. No duty imposed on the 2nd Defendant to enquire into the valuation of the Properties or legality of SPA. Duty only limited to the preparation of the Banking Facilities/security documentation 9 [24] The 2nd Defendant further contended that the learned Judge had erred in law and/or in fact in failing to appreciate that there was no duty imposed on the part of the 2nd Defendant to enquire into the valuation of the Properties or the legality of the Sales and Purchase Agreement (“SPA”) and that its retainer was limited to the preparation of Banking Facilities/security documentation. This is so since the 2nd Defendant was not involved in the valuation of the Properties nor involved in the preparation of the SPA. The SPA for RM7 million was the only SPA which the 2nd Defendant had received from the Plaintiff and it was not aware of the existence of another SPA for a lesser purchase price of RM432,000.00 for the same Properties. Properties had already been transferred and registered in STT’s name before the 2nd Defendant had advised for the monies for the Banking Facilities to be released to STT [25] Prior to the release of the monies for the Banking Facilities to STT, the 2nd Defendant had notified the Plaintiff that the Properties had already been transferred and registered in STT’s name. Particulars of conspiracy not pleaded [26] The Plaintiff pleaded that there was evidence of conspiracy/ collusion between the 2nd Defendant and/or the 1st Defendant and/or STT/STT's directors and/or the vendors from the time the Banking Facilities were approved. However, no particulars of conspiracy were pleaded between the 2nd Defendant and/or the 1st Defendant and/or STT directors and/or vendor and/or any other third parties. 10 Plaintiff was issue switching and forum shopping/Plaintiff’s contradictory stance [27] The learned Judge had erred in law and/or in fact in failing to appreciate that the Plaintiff was in fact issue switching and forum shopping in initiating its claim against the 2nd Defendant. This is so since prior to filing the claim against the 2nd Defendant, the Plaintiff had commenced proceedings in Kuala Lumpur High Court Civil Action No. WA-22NCC-13- 01/2016 ("Recover/Debt Action") against STT and its guarantors and in that claim, the Plaintiff had treated the Banking Facilities as regular and valid and no assertions of collusion or conspiracy were made that STT, through its directors, had colluded or conspired with the 2nd Defendant in order that it could achieve a wrongful gain from the Plaintiff in the manner now asserted by the Plaintiff in this claim against the 2nd Defendant under appeal. Industrial Court Proceedings [28] Further, in the Industrial Court Proceedings for wrongful dismissal initiated by Ms Saraswati, the Plaintiff’s stance was that its employee Ms Saraswati was negligent. The Plaintiff had dismissed Ms Saraswati, the Head of the Batu Pahat Business Centre who approved the Banking Facilities to STT. Her Deputy, Mr Koh Sze Buan was also dismissed. The decision to dismiss Ms Saraswati was made approximately over a year before the claim pertaining to this appeal was filed. Her dismissal which was made on the basis of negligence, the Recovery/Debt Action against STT and guarantors and the present action against the 1st and 2nd Defendant under appeal showed the contradictory positions taken by the Plaintiff. 11 PLAINTIFF’S SUBMISSION Delay and filing the striking out application after close of pleadings [29] The Plaintiff contended that the application to strike out was not made promptly since it was made 141 days after the close of pleadings. This showed that parties had every intention to set the matter down for trial. Application not made in good faith [30] The Plaintiff submitted that the 2nd Defendant’s striking out application was not made in good faith and that it was a tactical manoeuvre which was contrived by the 2nd Defendant. Pre-trial case management already conducted [31] The legal basis in support of such an application is flawed in light of the 2nd Defendant’s conduct and the manner in which it has conducted pre-trial Case Management. Cause of action separate and distinct/Issue switching and forum shopping [32] The cause of action in the Recovery/Debt Action against STT and guarantors is separate, distinct and fundamentally different from the present action against the 1st and the 2nd Defendant. The Judgment in Default (“JID”) obtained against STT in the Recovery/Debt Action does not disentitle the Plaintiff from commencing the present action against the 1st and the 2nd 12 Defendant as the JID did not address the claim for breach of contract, negligence, fraud and conspiracy in the present action. Issue switching and forum shopping [33] The 2nd Defendant’s allegations that the Plaintiff is issue switching and forum shopping in an attempt to salvage its position vis-a-vis the Banking Facilities by implicating the 2nd Defendant cannot be true as prior to the dismissal of Ms Saraswati on 15.6.2016, the Plaintiff had lodged a complaint with the Advocates & Solicitors Disciplinary Board against the Managing Partner of the 2nd Defendant on 21.4.2016. In any event, the Plaintiff's knowledge and/or negligence, if any, which is denied, does not absolve the 2nd Defendant from its professional and/or contractual duties and obligations to the Plaintiff as its solicitors. Triable issues [34] This is not a plain and obvious case for striking out as the Plaintiff’s claim against the 2nd Defendant is not obviously unsustainable. There are issues which have to be adjudicated through oral evidence before this matter can be determined. To do so summarily will amount to a miscarriage of justice in light of the various allegations of negligence, breach of retainer and conspiracy made against the 2nd Defendant. OUR DECISION AND DELIBERATION [35] The claim against the 2nd Defendant, a legal firm which was on the Plaintiff’s panel of lawyers, is for negligence, breach of contract, fraud and 13 conspiracy in relation to Banking Facilities that was granted by the Plaintiff to the borrower STT. The crux of the Plaintiff's claim against the 2nd Defendant is that the 2nd Defendant knew that the Properties which the Banking Facilities were obtained for as working capital, were overvalued, but proceeded to dishonestly and/or recklessly advised the Plaintiff to release the Banking Facilities to STT without adequate security, thus resulting in the Plaintiff incurring losses. The allegation that the 2nd Defendant had knowledge that the Properties were overvalued was due to the fact that there were two Valuation Reports on the same Properties: one for RM7 million and the other for RM432,000.00. Decision to grant Banking Facilities to STT was by the Plaintiff Creditworthiness of STT determined by Plaintiff No duty imposed on 2nd Defendant to enquire into the valuation of properties or legality of SPA. Duty only limited to the preparation of Banking Facilities/security documentation Properties had already been transferred and registered in STT’s name before the 2nd Defendant had advised for the monies for the Banking Facilities to be released to STT [36] In this case the Plaintiff had by a letter dated 26.3.2015 (the “Letter of Offer) approved and granted Banking Facilities to STT for the total sum of RM5.9 million to “part finance the purchase of 2 units of 1 ½ storey detached factory building in Sri Sulong Industrial Area”. STT, in lieu, offered the Properties, among others, as security for the Banking Facilities. The letter of offer from the Plaintiff to the borrower SST dated 26.3.2015 read as follows: 14 15 [37] On 2.4.2015 (the “Letter of Instruction”), the Plaintiff notified the 2nd Defendant that STT “had been granted banking facility” and instructed the 2nd Defendant to prepare the necessary documents related to the Banking Facilities and send all the documents to its Johore Bahru Credit Administration Centre (CAC) for further action once the documents were duly stamped. The letter of instruction from the Plaintiff to the 2nd Defendant dated 2.4.2015 read as follows: 16 [38] It is clear from the two (2) letters above that the 2nd Defendant was not involved in the Plaintiff’s decision-making process to grant the Banking Facilities to STT. The 2nd Defendant was not involved in determining the creditworthiness of STT and its directors or guarantors. The Plaintiff had its own internal processes to scrutinize the application for the Banking Facilities and the granting of the same was ultimately decided by the Plaintiff. From the letter of instruction dated 2.4.2015 it is apparent that the 2nd Defendant’s duty was limited to the preparation of the necessary loan documentation: that is to prepare the necessary documents for the Banking Facilities, have them duly stamped and then sent the documents to the Johore Bahru CAC for further action. This can be discerned from the fact that the instruction to the 2nd Defendant was given on 2.4.2015 after the Plaintiff had approved and granted the Banking Facilities to STT on 26.3.2015. [39] It is undisputed that the 2nd Defendant was not involved in the preparation of the sale and purchase agreement (SPA) for RM7 million nor was it aware of the SPA for RM432,000.00 for the same Properties. The SPA for the Properties between STT (the purchaser) and one Ding Kuai Bing @ Lim Kui Ming (the vendor) for the purchase price of RM7 million was prepared by another solicitor and not by the 2nd Defendant. The SPA for RM7 million was the only SPA the 2nd Defendant had received from the Plaintiff and the 2nd Defendant was not aware that there was another SPA for a lesser purchase price of RM432,000.00 (the 2nd SPA) for the same Properties. Since both the SPAs were not prepared by the 2nd Defendant, how could the 2nd Defendant had known that the price of the Properties was overvalued. That knowledge should be imputed to the solicitor who prepared the SPAs and the valuer who valued the Properties (the 1st Defendant) and not the 2nd Defendant. 17 [40] In the Federal Court decision of Chang Yun Tai & Ors v HSBC Bank

(2) The plaintiff in entitled to rely on the defendant's affidavit filed in Suit No 22–18–96 as the basis in the present suit. What 25 was stated by the defendant in his affidavit dated 3 December 1996 was actually an admission by him. Admission in pleadings is judicial admission and can be made the foundation of rights. Admission are admissible against the party making them. [21] Further in YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621; [1997] 4 CLJ 300, Mahadev Shanker JCA held as follows: For the record, however, we must state here that it is the opinion of this court that once a party to litigation has admitted a fact in his pleadings he shall not be heard to contend the contrary in the trial or in any appeal therefrom. [22] The respondent's own admission in the earlier suit as well as the amended statement of claim in the present suit show that the appellants were innocent victims as much as the respondent was. The respondent is estopped from taking a position different from that pleaded in its defence in the earlier suit. [emphasis added] [49] The case of Zulpadli (supra) was referred to by the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 where Idrus Harun JCA (as His Lordship then was), stated at p.75 as follows: [17] Also cited by learned counsel in the course of his oral submission on this point is this court’s decision in the case of Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 in which it was held that the respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit showed that the appellants were innocent victims as much as the respondent was. The respondent was estopped from taking a position different from that pleaded in its defence in 26 the earlier suit. Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a position in one court and the opposite in another tribunal (Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273). (see also) [emphasis added] Industrial Court Proceedings [50] In the Industrial Court Proceedings for wrongful dismissal initiated by Ms Saraswati, the Plaintiff’s stance was that its employee, Ms Saraswati was negligent for approving the loan facilities. The 2nd Defendant argued that by the dismissal on 15.6.2016 of Ms Saraswati who was the Head of the Batu Pahat Business Centre who had approved the Banking Facilities to STT, the Plaintiff had acknowledged and admitted that its own employee was negligent. Mr Koh Sze Buan who was Ms Saraswati’s deputy was also dismissed. Further, the show cause letter issued to Ms Saraswati by the Plaintiff clearly showed the Plaintiff’s own position that the Banking Facilities should not have been recommended or approved at the outset. This is so because if Ms Saraswati had perused the Valuation Report prepared by the 1st Defendant, she would have been fully aware of the fact that the Properties had already been transferred to STT even before the loan application was made and that the purpose of granting the loan facilities of RM4.9 million to the borrower STT to part finance the purchase of the Properties was unjustified. The show cause letter issued by the Plaintiff to Ms Saraswati is as follows: 27 “3. Lack of Verification on Land Search Record resulting in Financing granted to Purchase Asset Already Owned by the Borrower For the Term Loan of RM4.9 million recommended by you to Sentosa Timber Trading Sdn Bhd to part finance the purchase of 2 units of 1 ½ storey detached factories in Taman Industri Sri Sulong under Maxiplan Option III package stated in the A/A 2015JX1045, Audit’s findings noted that the SPA was dated 21/5/2014 i.e. a year before the loan applicant and the description of the said property states that the 2 pieces of industrial land are vacant. This contradicted the comments in the A/A on the purpose of the loan. Further, based on the “Catatan Carian Persendirian” (Land Search records) attached to the Valuation Report dated 20/4/2015 from Messrs Bahari & Co. the said properties had already been transferred to the borrower, Sentosa Timber Sdn Bhd on 18/8/2014 i.e. 7 months before the loan application date. Thus, the purpose of the Term Loan of RM4.9 million granted to the borrower to finance the purchase of the properties was unjustified [emphasis added] [51] The response by Ms Saraswati to the show cause letter admitting her “negligence” was that there was no SPA given by STT to her and that her failure in scrutinizing the Valuation Report of the Properties was due to staff incompetency, hectic schedules, meeting sale targets and urgent issues to be attended by her resulting in her “lapse’’ or oversight. The response is as follows: “At the point of recommending AA 2015JX1045 favouring Sentosa Timber Trading Sdn Bhd, there was no SPA given to us by customer and it was stated in the AA by the originator that the SPA was yet to be signed.” I would normally scrutinize the valuation report but in this case, circumstances which includes staff competency monitoring, hectic schedules, meetings sales target and some urgent issues would have inadvertently triggered this lapse.” 28 [52] The decision to dismiss Ms Saraswati was made approximately over a year before the claim pertaining to this appeal was filed. Her dismissal which was made on the basis of negligence, the Recovery/Debt Action against STT, STT’s directors and guarantors and the present action against the 1st and 2nd Defendant under appeal showed the contradictory positions taken by the Plaintiff. The dismissal also clearly showed the Plaintiff’s admission or acknowledgment that its own employee was negligent in granting the Banking Facilities to STT. There was no suggestion then that the Plaintiff was a victim of a fraudulent scheme involving STT, its directors, vendor and the 1st and 2nd Defendants. The claim is scandalous, frivolous or vexatious and/or an abuse in process [53] The conduct of the Plaintiff in changing its stance in that when it initially filed its Recovery/Debt Action, it was based on STT’s indebtedness; then its basis for dismissal of Ms Saraswati including its response to the dismissal proceedings initiated by Ms Saraswati in the Industrial Court proceedings, it was based on its admission of negligence by Ms Saraswati and its last action against the 1st and 2nd Defendants which was based on breach of retainer by the 2nd Defendant in wrongfully advising the Plaintiff to release the Banking Facilities to STT without proper verification or investigation on the Properties and the allegation of breach of contract, fraud, collusion or conspiracy committed by the 1st and 2nd Defendant with STT as the purchaser of the Properties and borrower of the Banking Facilities and the vendor: all these revealed that the Plaintiff’s claim under appeal is scandalous, frivolous and/or vexatious and is in fact an attempt by the Plaintiff to forum shop and issue switch. In such a scenario, due to the different and opposing stance 29 taken by the Plaintiff, the Plaintiff should be estopped and the claim should be struck out and dismissed. [54] In Re Vernazza [1959] 2 All ER 200 which was cited with approval by the Supreme Court in Chung Khiaw Bank Ltd v Tio Chee Hing [1987] 2 MLJ 701, Lord Parker CJ (as His Lordship then was), stated as follows: “In considering whether any proceedings are vexatious one is entitled to and must look at the whole history of the matter and it is not determined by whether the pleading discloses a form of action. Indeed that is the principle applied under the rules of court when application is made to strike out a pleading. Though the pleading may be in order, the court in its inherent jurisdiction is entitled to look at affidavits as to the history of the matter, and if in the light of the history the action is vexatious, the matter can be struck out and the action dismissed. This is in my judgment a clear case and there must be the order prayed.” (emphasis added) [55] The Plaintiff’s claim is also an abuse of process. We agreed with the contention of the 2nd Defendant that the Plaintiff’s claim is an attempt by the Plaintiff to salvage its position in relation to the monies due and owing under the Banking Facilities. This is so since in the Recovery/Debt Action, the Plaintiff had sought to recover RM15,776,694.08 with interest against STT and the directors as monies due and owing under the Banking Facilities (the “Judgment Sum”). The Plaintiff failed to recover the judgment sum and had commenced execution proceedings against STT and the directors for the same. The Plaintiff then sought to recover from the 2nd Defendant the amount outstanding from the Judgment Sum due and owing by STT, which amounts to RM5,784,473.12 despite the fact that by its own admission through Ms Saraswati, the Plaintiff had acknowledged that the losses 30 suffered by them was due to their own employee’s negligence in approving the loan facilities to STT without reference to the SPA executed by STT as the purchaser and the vendor and not perusing the Valuation Report made by the 1st Defendant. The Plaintiff has knowledge that the Properties were already paid for by STT and registered in the name of STT before the approval by them of the monies for the Banking Facilities. All these showed that the Plaintiff’s claim is an attempt to forum shop in the context of a “tactical manoevre’’ by a party as seen in Ismail Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 1 CLJ (Rep) 606. In such a scenario this Court has the discretion to strike out the action for abuse of court process. CONCLUSION [56] For the reasons enumerated above and after considering the Appeal Records and the submission of parties, we are unanimous in our view that there are merits in the appeal to warrant our intervention. We therefore allowed the 2nd Defendant’s application in Enclosure 15 to strike out the Plaintiff’s claim under Order 18, rule 19(1)(b), (c) and (d) of ROC 2012. We set aside the decision and order of the High Court dated 3.6.2018 with costs of RM15,000.00 (here and below), subject to the payment of allocator fees. Deposit, if any, is refunded. Appeal allowed with costs-Signed-Dated: 9th February 2021 (SURAYA OTHMAN) Judge Court of Appeal Malaysia 31 CASE(S) REFERRED TO:

1. Wong Yew Kwan v Wong Yu Ke & Anor [2010] 2 CLJ 703;

2. Chang Yun Tai & Ors v HSBC Bank (M) & Other Appeals [2011] 7 CLJ 909;

3. Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 MLJ 799;

4. Associated Leisure Ltd (Phonographic Equipment Ltd) & Ors v Associated Newspapers Ltd [1970] 2 QB 450;

5. Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and Another Appeal [1995] 2 MLJ 770;

6. Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd & Ors [2013] 2 MLJ 915;

7. Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63;

8. Re Vernazza [1959] 2 All ER 200;

9. Chung Khiaw Bank Ltd v Tio Chee Hing [1987] 2 MLJ 701; and 10. Ismail Ibrahim & Ors v Sum Poh Development Sdn Bhd & Anor [1988] 1 CLJ (Rep) 606. LEGISLATION REFERRED TO: Order 18, rule 19(1)(b), (c) and/or (d) Rules of Court 2012 (“ROC 2012”) COUNSEL: For the Appellant : Malik Imtiaz Sarwar (with him Chan Wei June and Phang Ja Mein) Messrs Yeo Chambers Suite 30.06, 30th Floor Johor Bahru City Square Office Tower No. 106, Jalan Wong Ah Fook 80000 Johor Bahru 32 For the Respondent : Christopher Arun A/L Francis (with him Daniel Husseini Bin Mohd Ghazali Forsberg) Messrs Ariff Rozhan & Co L-6-1, No. 2, Jalan Solaris Solaris Mont’ Kiara 50480 Kuala Lumpur