Tohtonku Sdn Bhd v S.L. Ng Trading Agency Sdn Bhd (WA-22NCvC-16-01/2025)

In this case the Court struck out the Statement of Claim filed by the Plaintiff for failing to comply with the Rules of Court 2012 (“the Rules”) on the drafting of a Statement of Claim. The striking out of 01/08/2025 16:46:36 WA-22NCvC-16-01/2025 Kand. 54 the Statement of Claim was on the basis that the manner the Statement of Claim was drafted would prejudice, embarrass and delay a fair trial of the action. The defects in the Statement of Claim (SOC)

The SOC starts off with an index as to its contents which itself is unusual as normally it will begin by introducing the Plaintiff and the Defendant.

Ignoring this departure from the normal the Court glanced through the Index and it was apparent from the Index itself that the SOC had flouted every rule of drafting stated in the Rules. The Court will list out each items in the index starting with item B.

The index in “B” is entitled “Perjanjian Pengedaran”. The facts under this index reveals that the Plaintiff and the Defendant had entered into a distribution agreement to “membeli dan mengedarkan Barang Niaga”. The Plaintiff then reproduces the entire clauses on the mode of payment in the Agreement which are contained in clauses 4 and 5.

The first flaw which flout the Rules in the above content is it does not disclose what are the items agreed to be distributed apart from saying generally as “Barang Niaga”. The Rules require that all material facts should be disclosed. What are the goods to be supplied are not detailed out. Order 18 Rule 7 of the Rules states : Facts, not evidence, to be pleaded (O. 18 r. 7)

Subject to the provisions of this rule and rules 10, 11 and 12, every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.

The 2nd flaw is reproducing the entire clauses of the Agreement which flouts Order 18 Rule 7(2) of the Rules which stipulates that:

Without prejudice to paragraph (1), the effect of any document or the purport of any conversation referred to in the pleading shall, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material. Index C

Index C is entitled “Perjanjian Bekenaaan Tuntutan Perdagangan Defendan” and the facts pleaded indicates that this is a second agreement between the Plaintiff and the Defendant. The agreement is unclear as it merely states “sebagai sebahagian daripada perniagaan, Defendant berhak menyerahkan tuntutan-tuntutan perdagagannya….”

The contents under this Index does not give particulars of this agreement especially on when it was entered apart from merely stating “telah dipersetujui antara pihak-pihak”. Who are this “pihak-pihak” is also not stated. This again flouts Order 18 Rule 7 as stated above wherein material facts are missing.

There is entirely no clarity from reading the contents as what this agreement relates to and whether there is any connection with the 1st agreement to distribute goods.

The entire index D is with regards to the discussion held between the Plaintiff and the Defendant between end of 2023 and early 2024 on distribution margin. Again material facts are missing as to the nature and place of discussion and the actual parties involved in the discussion. What this distributor’s margin is not defined and there are no prior facts to show what this distributor’s margin is.

A more serious non-compliance of the Rules is that the discussions are more in the nature of evidence which can be adduced by the Plaintiff during trial. The Rules expressly prohibits evidence to be pleaded as stated in Order 18 Rule 7.

Under this heading the Plaintiff alleges that the Defendants have failed to pay for the invoices issued by the Plaintiff and failed to pay a sum of RM 11.458 million. No particulars are given as to the invoices or how the sum of RM11.458 million is derived from. Index H, I, J and K

All the facts pleaded are in general terms with no particulars nor showing relevancy to the agreement between the parties.

Under this index the Plaintiff claims for a sum of RM64, 974, 463 without specifying how this sum was derived from. The Plaintiff also claims for special damages of RM1,230, 023 and sum RM330,400 without any supporting facts.

In short the entire Statement of claim is riddled with omissions and irrelevancies bereft of all the material facts to support a discernable cause of action. No proper trial can be conducted under this circumstances.

The Court is empowered to strike out the SOC if the SOC will prejudice, embarrass or delay the conduct of a fair trial as is envisaged under Order 18 Rule 19 which stipulates as follows:

Striking out pleadings and endorsements (O. 18 r. 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.

Further powers are given under Order 34 of the Rules which leaves the management of a case for trial to the court by giving extensive powers to the court during management of the case before proceeding for trial

Orders and directions for just, expeditious and economical disposal of proceedings (O. 34 r. 1)

Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that-

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof.

In the face of the defects in the SOC a normal directive from the court would be to direct the parties to amend the pleadings. In this case the Court feels that the SOC does not only need amendments but a replacement in order to secure a just, expeditious and economical disposal of the case.

In the upshot the Court struck out the Plaintiff’s claim with no order as to cost and with a liberty to file afresh. Dated: 28.7.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Chok Zhin Theng, Michalle Chin Tetuan Cheah Teh Su L-3-1, No. 2, Jalan Solaris, Solaris Mont’ Kiara, 50480 Kuala Lumpur. For the Defendant: Nama Peguamcara: Tay Li Sheng Tetuan S Ravenesan No. 54-1, Jalan Telawi