Tektra Sdn. Bhd. v Pembinaan & Letrik Mals Sdn. Bhd. (BA-22C-16-05/2025)

Pembinaan & Letrik Mals Sdn. Bhd. [No. Pendaftaran: 199701019764 (435261-P)]

Nurul Aisha Binti Sumali (No. KP : 961108-10-5692)

Muhammad Adreez Bin Sumali (No. KP : 981119-56-6089)

Noreldzleen Binti Mohd Rais (No. KP : 700721-05-5034)

Sumali Bin Pa’at (No. KP : 620616-10-5837) …DEFENDAN-DEFENDAN [DALAM TUNTUTAN BALAS]

Pembinaan & Letrik Mals Sdn. Bhd. [No. Pendaftaran: 199701019764 (435261-P)]

Nurul Aisha Binti Sumali (No. KP : 961108-10-5692)

Muhammad Adreez Bin Sumali (No. KP : 981119-56-6089)

Noreldzleen Binti Mohd Rais (No. KP : 700721-05-5034)

Sumali Bin Pa’at (No. KP : 620616-10-5837) …PLAINTIF-PLAINTIF

Tektra Sdn. Bhd. [No. Pendaftaran: 201701008029 (1222194-T)]

Anand Raja a/l Chitravelu (No. KP : 740121-07-5011)

Kartini Binti Hamzah (No. KP : 840211-14-5720) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

The Defendants in the Counterclaim filed the following applications :-

Enclosure 24 : an application to strike out, under Order 18 rule 19(1)(a) or (b)and/or (c) and/or (d) of the Rules of Court 2012 (“RoC”), the Counterclaim dated 25.7.2025 issued by the First, Second and Third Plaintiffs in the Counterclaim;

(ii) Enclosure 32 : an application to strike out, under Order 18 rule 19(1)(a) or (b)and/or (c) and/or (d) of the RoC, the Counterclaim dated

9.10.2025 issued by the Fourth and Fifth Plaintiffs in the Counterclaim.

Having considered the pleadings, the affidavits filed and submissions of parties, this Court has on 2.4.2026 allowed both applications with costs of RM5,000.00 and RM3,500.00 respectively, thereby striking out both Counterclaims in their entirety.

Dissatisfied with my decision, only the First Plaintiff in the Counterclaim lodged an appeal against my decision in allowing Enclosure 24.

I append below my grounds in allowing Enclosure 24 vis-à-vis the 1st Plaintiff only. The parties shall be referred to in their respective capacities in the Counterclaim.

The 1st Plaintiff was the main contractor for a project known as “Projek Depoh Baru KTM Tumpat, Kelantan”, a project under the Ministry of Transport (“the MoT”). The Second to Fifth Plaintiffs are the directors or management personnel of the First Plaintiff.

Around January 2024, the 1st Plaintiff (through the 4th Plaintiff) approached the 1st Defendant, Tektra Sdn Bhd, to complete outstanding project works valued at an estimated value of RM1,781,120.00, with a further sum of RM2,400,000.00 due for payment from the MoT for the Project.

The 1st Defendant alleged that it undertook the works based on representations that substantial project funds remained recoverable from the MoT.

According to 1st Defendant, it later discovered that:

the project had already been delayed since August 2023;

liquidated agreed damages (“LAD”) was accruing against the 1st Plaintiff;

part of the project payments had already been assigned to another contractor, Duta Asia Builders;

the remaining recoverable project funds were substantially less than represented.

Despite these concerns, the 1st Defendant continued the works and allegedly incurred costs of RM3,593,765.40.

To resolve the payment dispute, the parties entered into a Subcontract Agreement dated 10.10.2024 (“the Agreement”), the relevant terms of which are as below: “(a) Clause 7 The First Party has on this date hereof invested and paid the amount of RM3,593,765.40… as part completion of the contract and the Second Party acknowledge have verified such payments made by the First Payment and hereby irrevocably undertake to pay the First Party the amount paid together with 25% of the Contract Sum amounting to RM4,492,206.75…”

Clause 31 Upon request and persuasion by the Second Party the First Party agrees to continue the Works for the purpose of avoiding the Second Party’s Contract being terminated and blacklisted by the Ministry of Transport Malaysia. However, the Second Party shall hereafter make payments to the First Party immediately without delay for the said works to be carried out.

Clause 9.2 Time is not the essence of this Agreement.

Clause 14.3 All payments shall be made to Pembinaan & Letrik Mals Sdn Bhd, CIMB Bank (Account Number 8604649615), which account has been totally assigned and unlimitedly given access including internet banking to the First Party for the administration of this project.

Clause 24 The Agreement sets out the entire agreement of the Parties and supersedes all prior agreements and understandings relating to its subject matter. Neither party shall be entitled to rely on any agreement, understanding or arrangement which is not expressly set forth in this Agreement.

Clause 31 Upon request and persuasion by the Second Party the First Party agrees to continue the Works for the purpose of avoiding the Second Party’s Contract being terminated and blacklisted by the Ministry of Transport Malaysia. However, the Second Party shall hereafter make payments to the First Party immediately without delay for the said works to be carried out.

Following the execution of the Agreement, the Plaintiffs only paid the 1st Defendant RM626,500.00. This prompted the 1st Defendant to issue a Notice of Demand dated 17.10.2024 (“the NoD”), demanding payment of the outstanding balance of RM3,865,706.75 from the 1st Plaintiff.

Save for a further payment of RM100,000.00 made after the NoD, the 1st Plaintiff failed to settle the outstanding balance. Consequently, the 1st Defendant commenced the present suit against the Plaintiffs, claiming the sum of RM4,440,355.73.

In response, the Plaintiffs filed a Defence and Counterclaim alleging, among others:

that the Agreement was not signed;

in the alternative, the Agreement was invalid because:

it was never properly executed;

(ii) the signatures, initials and company chop of the Plaintiffs were allegedly misused or forged;

(iii) alternatively, the Agreement was procured through coercion, undue influence and/or fraud.

the 1st Defendant’s failure to complete the works which caused the termination of the main contract;

the 1st Plaintiff was blacklisted from future MOT/KTM projects;

that the 1st Plaintiff suffered substantial financial and reputational losses.

The Counterclaim sought for the following reliefs from the

RM3,541,564.28 as losses suffered by the 1st Plaintiff;

RM5,000,000 as reputational damages;

RM480,000.00 being refund of the monies advanced to the 1st Defendant and/or the 2nd Defendant;

RM246,337.00 being refund of the monies wrongly taken by the 2nd Defendant and 3rd Defendant;

declaration that the Agreement was invalid;

general, aggravated and exemplary damages.

The issues before this Court are narrow and may be formulated as follows :-

Whether the Counterclaim disclosed any reasonable cause of action within the meaning of Order 18 rule 19(1)(a);

Whether the Counterclaim is frivolous, vexatious or otherwise unsustainable under Order 18 rule 19(1)(b);

Whether the Counterclaim would prejudice, embarrass or delay the fair trial of the action under Order 18 rule 19(1)(c);

Whether the Counterclaim amounts to an abuse of the process of the Court under Order 18 rule19(1)(d).

It is trite that an application under Order 18 rule19 is summary in nature and must be exercised with circumspection.

The law on striking out was stated under Order 18, rule 19 of the Rules of Court 2012 (ROC 2012) which can be found as below: Striking out pleadings and endorsements (O. 18, r. 19)

19.

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).

In Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Federal Court held that the striking out jurisdiction must be exercised only in plain and obvious cases where the claim is “obviously unsustainable”.

In respect of Order 18 rule 19(1)(a), the Court is confined to the pleadings and the test is whether, assuming the pleaded facts are true, the claim is plainly and obviously unsustainable – per Federal Court in New Straits Times (M) Bhd v Kumpulan Kertas Niaga Sdn Bhd (1985) 1 MLJ 226.

For limbs (b), (c) and (d), the Court may consider affidavit evidence and the broader context of the proceedings. The Court of Appeal in See Thong & Anor v Saw Beng Chong [2012] CLJU 817 has explained in depth the law on striking out application : “[9] An applicant for striking out under O. 18 r. 19 can rely on any one or more than one sub-paras. (a) to (d). So far, there is no authority to say otherwise. Halsbury's Laws of Malaysia clearly confirms that an applicant under this rule is entitled to rely on any or all of the grounds specified in the rule. An application under this rule is not void and ineffective merely because sub-para. (a) had been pleaded together with sub-paras. (b), (c) and (d). The only limitation imposed under sub-r. (2) is that for an application under sub-para. (a), no evidence is admissible. However, where the court proceeds to decide an application under any other sub-paragraph, affidavit evidence should be admissible. Even though sub-paras. (b) to (d) are to be read disjunctively, it does not mean that an applicant cannot rely on more than one sub-paragraph in his application. (see: Malayan United Finance Bhd lwn. Cheung Kong Plantation Sdn Bhd & Yang Lain [2000] 2 CLJ 601; Pegasus Engineers Sdn Bhd v. Sambu (M) Sdn Bhd [1998] 3 CLJ 677; [1998] 4 MLJ 129 and Malaysian Court Practice 2007 Desk Edn. (High Court) p. 239). [10] In the present case since the application by the respondent is also based on sub-para. (1)(a), the learned judge should have dealt with the said sub-paragraph notwithstanding the fact that both parties had filed their respective affidavits. Those affidavits are actually to be used for the other two sub-paras. (b) and (d). What the learned judge should have done is to deal with the issue under sub-para.

first and to ignore completely the two affidavits filed by the parties; before proceeding to deal with sub-paras. (b) and (d). [11] The learned judge must bear in mind that striking out a claim for no reasonable cause of action under sub-para. (1)(a) is only appropriate in a plain and obvious case. The learned judge must be satisfied that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiffs to the relief which they asked for. The procedure is a summary procedure. It should only be adopted when it is conspicuously clear that the claim on the face of it is obviously unsustainable. Just look at the statement of claim. The test to be applied is whether on the face of the statement of claim, the court is prepared to conclude that the cause of action is obviously unsustainable (see: Federal Court decision in New Straits Times (Malaysia) Bhd v. Kumpulan Kerta Niaga Sdn Bhd & Anor [1985] CLJU 1; [1985] 1 LNS 1; [1985] 1 MLJ 226).” [Emphasis added] ANALYSIS BY THE COURT

Order 18 rule 19(1)(a) : No reasonable cause of action

The 1st Plaintiff has pleaded the following cause(s) of action against the Defendants in its Defence and Counterclaim dated 25.7.2025 :

Consequent upon their contention that the Agreement was either non-existent or that its execution had been procured by coercion, undue influence and/or fraud, the Plaintiffs sought to rely on two Letters of Award dated 1.2.2024 and 29.7.2024 as constituting the foundation of the contractual relationship between the parties, the breach of which entitled the Plaintiffs to claim for the monetary reliefs sought in the Counterclaim.

The principles with regard to pleadings are trite and settled. A starting point is the Rules of Court 2012, in particular Order 18 rules 8 and 12 which read as follows:

Matters which shall be specifically pleaded (O. 18 r. 8)

A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality-

which he alleges makes any claim or defence of the opposite party not maintainable;

which, if not specifically pleaded, might take the opposite party by surprise; or

which raises issues of fact not arising out of the preceding pleading.

Particulars of pleading (O. 18 r. 12)

Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words-

particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

The repercussion of not specifically pleading the elements of, inter alia, coercion, undue influence and/or fraud is grave as seen in the court of appeal case of Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428 where Ramly Ali JCA (now His Lordship then was) said as follows at 435: “[19] The existence of coercion, undue influence, fraud, misrepresentation or mistake (or any of them) if proven, may negate the element of consent by the defendant (as he alleged), in entering into the SPAs. In order to prove any of the elements above, it must first be specifically pleaded by the defendant in his statement of defence as required under O 18 r 8 and r 12 of the Rules of the High Court 1980. Failure to specifically plead any of those elements is fatal to the defendant’s case. In the present case, the defendant has failed to specifically plead any of those elements, in his statement of defence. Therefore, the defendant cannot in law rely on any of those defences.” [emphasis added]

The law is settled that fraud must be distinctly pleaded with full particulars. In Zung Zang Wood Products Sdn Bhd & Ors. V Kwan Chee Hang Sdn Bhd & Ors. (2014) 2 MLJ 799, the Federal Court held as follows : “[24] We need say no more on s 18 of the ILA 1908. In relation to pleadings in general, the rules of court require a pleading of fraud to contain particulars of the fraud on which the party pleading relies (see O 18 r 12(1)(a) of the Rules of the High Court 1980, now Rules of Court 2012). ‘When fraud is alleged it must be specifically pleaded. The mere allegation of fraud without showing facts to support it is not a matter to which the court will pay serious attention (Wallingford v Mutual Society and Official Liquidator (1880) 5 App Cas 685 at p 697. The party need not use the word ‘fraud’ if he pleads, in unambiguous language, acts which amount in law to fraud (Myddleton v Lord Kenyon (1794) 2 Ves 391 at p 412). Whenever fraud or misrepresentation is alleged in a pleading, or any affidavit, full particulars of the alleged fraud or misrepresentation must be given’ (Spenser Bower, Turner and Handley, Actionable Misrepresentation, (4th Ed), at pp 384–385).” [Emphasis added]

Upon perusal and examining the Counterclaim as a whole, this Court finds that there is a fundamental failure on the part of the 1st Plaintiff to plead with precision its complete cause of action against the Defendants.

The pleading is marked with inconsistencies, the 1st Plaintiff simultaneously pleaded :-

that the Agreement did not exist;

alternatively, that the Agreement was procured by coercion and undue influence;

further alternatively, that the Agreement was procured by fraud;

in addition thereto, the signatures were forged.

I am of the view that these are not merely alternative pleadings, they are mutually destructive positions which were advanced without any clear factual foundation.

Of critical importance, the 1st Plaintiff has pleaded fraud, coercion and undue influence, with forgery thrown in, without material particulars.

A general allegation of fraud, coercion and undue influence is not merely defective, it is legally insufficient.

In the present case, on the issue of fraud it is the finding of this Court that the Defence and the Counterclaim has failed to identify:-

the specific acts constituting fraud;

the identity of the persons who committed the alleged acts and the persons upon whom the alleged acts were perpetrated;

the manner, date and timing of the alleged fraud;

the causal nexus between the alleged fraud and the loss claimed.

As regards the allegation of coercion, there is a conspicuous absence of material pleadings by the 1st Plaintiff against the Defendants in respect of the following matters:-

the specific acts complained of;

the persons who committed those acts;

when and where they occurred;

how those acts compelled the Plaintiff to enter the agreement;

the causal link between the coercion and execution of the contract.

Turning next to the 1st Plaintiff’s allegation of undue influence, material particulars in respect of the following matters are likewise absent from its pleadings:-

the relationship between the parties;

the position of dominance;

the circumstances showing abuse of that position;

the transaction complained of;

why the transaction was not the result of free and independent judgment.

In the absence of such material facts, the pleadings did not disclose complete cause(s) of action.

Mohamed Azmi SCJ in delivering the judgment of the Supreme Court in the case of Muniandy & Anor v Muhamad Abdul Kader & Ors [1989] 2 MLJ 416 said at p418: “Unless the objection raised is merely technical, the importance of pleadings can be found in many authorities. The most instructive is perhaps by Lord Diplock in Hadmor Productions v Hamilton [1983] 1 AC 191 (refd) at p 233: Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound, has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice, the right of each to be informed of any point adverse to him that is going to be relied upon by the judge, and to be given the opportunity of stating what his answer to it is … (Emphasis added.)”

The Court further notes that the Counterclaim included claims for the recovery of RM480,000.00 and RM246,337.00. The mere pleading of a monetary sum does not, without more, disclose a cause of action. The pleading must identify the basis upon which recovery is sought.

In respect of the RM480,000.00 claim, the Counterclaim merely asserted that monies were advanced to the 1st Defendant and/or the 2nd Defendant and ought to be refunded. No material facts are pleaded establishing:

the legal character of the payment;

the terms governing repayment (if at all);

when repayment became due;

the facts giving rise to any obligation to repay.

Absent such facts, the pleading does not disclose a complete cause of action in debt, unjust enrichment, money had and received, or any other recognised restitutionary basis.

Likewise, the RM246,337.00 claim cannot be sustained in light of the 1st Defendant’s averment at paragraph 21(g) of the Statement of Claim where the 1st Defendant “bersetuju untuk memberi Plaintif akses tanpa had ke atas akaun pembayaran CIMB Bank milik Defendan Pertama termasuk akses perbankan internet bagi tujuan pengurusan Projek tersebut oleh Plaintif dan juga sebagai sekuriti pembayaran semula oleh Defendan Pertama kepada Plaintif”, which obviously is in reference to Clause 14.3 of the Agreement.

In any event, this claim is unsupported by material facts identifying:

the specific transfers complained of;

the dates and manner of the alleged withdrawals;

the authority allegedly exceeded;

the legal relationship giving rise to the duty breached;

the legal basis upon which restitution is sought.

The pleading therefore fails to disclose any complete cause of action in conversion, breach of fiduciary duty, dishonest assistance, knowing receipt, unjust enrichment or otherwise.

This Court is acutely mindful that the jurisdiction under Order 18 rule 19 is to be exercised sparingly and only in plain and obvious cases. It is equally recognised that defects in pleading, including lack of particularisation, may in appropriate cases be cured by amendment.

However, the present case does not concern mere deficiencies in drafting or a failure to particularise an otherwise recognisable cause of action. Rather, upon a close examination of the Counterclaim as pleaded, this Court finds that the pleaded case, taken at its highest and assuming them to be true in their entirety, fails to disclose the essential legal ingredients necessary to sustain any viable cause of action recognised in law.

The striking out is premised not on any perceived weakness in proof, but on the absence, within the pleadings themselves, of the material facts necessary to constitute the essential legal elements of the causes of action asserted.

The defects identified are not curable by amendment. They go to the root of the pleading. In particular, the Counterclaim advances multiple positions which are not simply alternative but are internally irreconcilable at the level of legal foundation, namely:

the non-existence of the subcontract;

its existence but procured by coercion;

its procurement by fraud; and

its execution through forgery.

Critically, even if one were to assume in favour of the 1st Plaintiff that these positions could be clarified or refined by amendment, the Court is unable to discern, from the pleaded facts, any coherent factual substratum capable of satisfying the minimum legal elements of the pleaded causes of action.

Further, the allegations of fraud, coercion and undue influence were not merely lacking in particulars but were entirely unsupported by pleaded primary facts from which the alleged wrongdoing could be legally inferred. This is not a case where particulars are missing; it is a case where the facts necessary to constitute the cause of action, or any of them, are absent. In such circumstances, amendment would not cure the defect, as there was no pleaded factual framework upon which a legally sustainable claim can be constructed.

This is a plain and obvious case where the Counterclaim is unsustainable.

A counterclaim which advances mutually inconsistent allegations of non-existence, fraud, coercion, undue influence and forgery without pleading material particulars, is plainly and obviously unsustainable and liable to be struck out under Order 18 rule 19(1)(a).

The Defendants’ ability to marshal and present their defence effectively to meet and answer the 1st Plaintiff’s claim, at the very least was severely handicapped.

The Counterclaim fails not only because the allegations of fraud, coercion and undue influence are inadequately pleaded, but also because the pleaded monetary claims do not identify any recognised juridical basis entitling the 1st Plaintiff to recover these monetary claims. The absence of such material facts is fatal and incapable of cure by amendment.

In light of the above findings, it is strictly unnecessary to consider the remaining limbs. However, for completeness I shall proceed to analyse the same.

Order 18 rule 19(1)(b) : frivolous or vexatious

Even upon a careful and minute reading of the affidavit in reply filed by the 3rd Plaintiff, the Court was unable to discern the factual substratum supporting the 1st Plaintiff’s case against the Defendants.

The Counterclaim is premised on speculative, general and allegations without condescending into particulars, including serious allegation of fraud.

In support of its Counterclaim and its contention that the Agreement did not exist and was procured by fraud perpetrated against the 1st Plaintiff, the 1st Plaintiff relied on the following documents, all of which, for the reasons set out below, were rejected:-

two letters of award dated 1.2.2024 and 29.7.2024 said to be the documents evidencing the contractual relationship between the 1st Plaintiff and the 1st Defendant. In terms of chronology, it is clear that the Agreement superseded the two letters of award, having been executed subsequently and intended to govern the parties’ rights and obligations in place of the earlier arrangements. This is evident from Clause 27 of the Agreement, which expressly provides that: “This Agreement sets out the entire agreement between the Parties and supersedes all prior agreements and understandings relating to its subject matter. Neither party shall be entitled to rely on any agreement, understanding or arrangement which is not expressly set forth in this Agreement.” The effect of Clause 27 is plain. The parties expressly agreed that the Agreement would constitute the complete and exclusive record of their rights and obligations, superseding all prior agreements, arrangements and understandings relating to the same subject matter. Accordingly, in terms of chronology and contractual effect, the Agreement displaced and superseded the two letters of award. In Wong Yee Boon v Gainvest Builders Sdn Bhd (2020) 2 CLJ 727, the Federal Court accepted that where an agreement contains an entire agreement clause, it would estop a party from relying on any purported representation or extraneous evidence to interpret, supplement or contradict the obligations set forth in the agreement.

the police report lodged by Noreldzleen binti Mohd Rais on 16.7.2025 alleging that not only was her signature forged on the Agreement, but also that of, inter alia, the 1st Plaintiff. It must be noted that the report was lodged on 16.7.2025, after the Writ and Statement of Claim dated 29.5.2025 had been served on the 1st Defendant, as evidenced by the Memorandum of Appearance entered through its solicitors on 26.6.2025. More significantly, the report was lodged after the 1st Defendant had made part payment of RM100,000.00 towards the demanded sum of RM3,865,706.75 pursuant to the NoD. Based on the chronology of events it is therefore difficult to reconcile with the assertion that the Agreement was a forgery or otherwise non-existent. Had the Agreement truly been forged, one would have expected an immediate and unequivocal repudiation rather than conduct consistent with acknowledgment of liability under the Agreement. The High Court in Ooi Swee King v Standard Chartered Saadiq Berhad (2025) CLJU 1934 made an observation consistent with that of Nallini Pathmanathan J (as she then was) in RHB Bank Bhd v Majmekar Holdings Sdn Bhd, which this Court adopts : “[79] The police report lodged by the defendant, coinciding with the filing of his counterclaim, was not followed up with any credible investigation or supporting forensic analysis (such as referral to the Chemistry Department). In light of its timing and lack of follow-through, the report appears more tactical than genuine, consistent with the reasoning in RHB Bank Bhd v. Majmekar Holdings Sdn Bhd & Ors(supra) wherein Nallini Pathmanathan J (as Her Ladyship then was) held as follows: "[16] In examining both parties' affidavits, I have reminded myself that it is not acceptable for the court in summary judgment proceedings to undertake any sort of trial by affidavit. There can be no 'weighing' of the relative truth or otherwise of each parties' affidavits. If the defendant shows a 'triable' issue, that is sufficient to entitle him to leave to defend. [17] However there is a minimum evidential threshold that a potential defendant has to attain to enable him to procure leave to defend. He has to show the court that he genuinely harbours a case which warrants going to trial. It cannot be sufficient to simply make an allegation of 'fraud' or 'forgery' without more, and expect that that one allegation in itself will ensure that the matter goes to trial. To so hold would be to open the floodgates to debtors in the commercial world alleging 'fraud' and 'forgery' in response to genuine claims made against them with a view to delaying repayment of duly owed debts. The net effect on the commercial world would be detrimental. [18] The issue in this case is whether D3 has in fact discharged the minimum threshold limit to show that he has a genuine and credible defence, as a consequence of which leave to defend should be granted. When his affidavits are pared down to their essence, it is evident that the only fact of any real value that he affirms to is the bare assertion that he did not sign the guarantee. There is no response to the fact of third parties having affirmed seeing him attest the guarantee. There is no factual matrix surrounding the signing of the guarantee that appears to warrant investigation. [19] Apart from this it is also material that it is only after proceedings had been commenced that he denied that he had signed the guarantee. When the letter of demand dated 15 June 2006 was sent to D3, he did not deny signing the guarantee. It was only in March 2008 that he made a police report stating that a third party had forged his signature as guarantor. If D3 did not sign the guarantee, he would be expected to have complained about his wrongful inclusion as a guarantor at a considerably earlier time, and certainly by 15 June 2006." [Emphasis added] There was also the uncontroverted pictorial evidence adduced by the 1st Defendant which included photographs depicting the 3rd Plaintiff executing the Agreement, together with WhatsApp screenshots evidencing and confirming the execution of the Agreement by both the 1st Plaintiff and the 3rd Plaintiff.

With regard to the RM246,337.00 claim and further to paragraph 38 above, this claim also cannot be sustained in light of the 2 directors’ resolutions dated 21.3.2024 and 29.5.2024 signed by the 2nd Plaintiff and the 3rd Defendant as directors of the 1st Plaintiff whereby they expressly authorised the 2nd Defendant and the 3rd Defendant “to operate all the Company’s accounts linked to CIMB Bank Berhad internet banking facility on behalf of the Company.”

Based on the foregoing, I have no hesitation in concluding that the 1st Plaintiff has not met the minimum threshold in its pleadings. Further, the pleadings is devoid of a coherent legal foundation.

The irresistible conclusion drawn on the above is that the 1st Plaintiff pleadings were frivolous and vexatious.

Order 18 rule 19(1)(c) :

I am of the view that the inconsistent and diffused nature of the pleadings would obscure the real issues between parties, complicate the proceedings and unnecessarily prolong the trial.

As such, an intervention under this limb is also justified.

Order 18 rule 19(1)(d) :

The Counterclaim appears to be deployed as a defensive mechanism to resist an otherwise straightforward contractual claim.

In assessing whether the Counterclaim falls under this limb, the Court confines itself to the objective legal sustainability of the pleaded case. The inquiry is not concerned with the parties’ motives in advancing the claim, but whether, on the face of the pleadings and the applicable legal principles, the Counterclaim constitutes a misuse of the Court’s process.

For the reasons set out above, particularly the absence of any pleaded factual substratum capable of sustaining a recognised cause of action, the Court is satisfied that permitting the Counterclaim to proceed would amount to an abuse of process.

The cumulative defects present in the 1st Plaintiff’s pleadings, where there is absence of cause of action and unparticularised cause(s) of action namely fraud, forgery, coercion and undue influence, renders the Counterclaim an abuse of process.

Lest the Court be accused of overlooking the 1st Plaintiff’s monetary relief of RM3,541,564.28 as losses suffered by the 1st Plaintiff, I find that as the 1st Plaintiff has failed in its bid to oust the Agreement in favour of the two letters of award dated 1.2.2024 and 29.7.2024, this claim is unsustainable.

For the claim of RM5,000,000 as reputational damages, the 1st Plaintiff has failed in its entirety to plead the cause of action said to give rise to such a claim, be it defamation or the tort of malicious falsehood or breach of contract where particulars of the specific loss of contracts, specific loss of business opportunities, particulars of clients lost and quantifiable financial consequences are pleaded particularly.

Accordingly, the 1st Defendant’s application under Enclosure 24 is allowed in that:

the Counterclaim in Enclosure 11 is struck out in its entirety;

(ii) costs of RM5,000.00 to be paid by the 1st Plaintiff to the 1st Defendant, subject to allocator. Dated : 12th June 2026 t.t ………………………………………… Shahriza Zalina Binti Abdul Shukor Judicial Commissioner High Court of Malaya Shah Alam For the Plaintiffs: Leonard Then Eesan together with Lim Li Hong (Leonard Then & Tan) For the Defendants: Muhammad Nabil Nafis bin R Mustafa (Azwar & Associates)