Tropical Profile (M) Sdn Bhd v Cantilever Bumi Sdn Bhd (BA-22C-11-03/2023)

Edge Protection for

16.00 21,360.00 2. Cantilever Bracket include

69.00 60,927.00 3. Pier Soffit installed for Deck Slab 264

50.00 13,200.00 4. Permanent Formwork 1458.60 M2 98.00 142,942.80 5. Safety Net 22925 M2 15.00 343,875.00 6. Catch Net 22925

7.1 7.1.1 7.1.2 7.1.3 7.2 7.3 7.4 7.5 (PERI Scaffold) Rental per month (May 2021 to December 2021) Lost Material + Scrap Lost Material + Scrap Repair & Cleaning Sales & Purchase Installation Access Tower including safety net & toe board Safety Net Safety Net Edge Protection (Safety net & toe board) Completed Casting (Formwork, Concrete, Rebar &

Shoring) 664 544 64 LS M3 M2 M2 72.00 15.00 16.00 114,106.15 68,087.58 1,200.00 37,051.36 5,375.81 8,160.00 1,024.00 60,528.24 1,382,187.94 [10] agreement purportedly reached at the meeting on 22.10.2021 whereby As consequences to the said breach, the Plaintiff has suffered losses. [11] amounts to an admission, which the Defendant denies. [12] The Defendant on the other hand had filed this application pursuant to Order 18 Rule 19(a), (b) and (d) of the Rules of Court 2012 as it contents that cause of action, that the claim is scandalous, frivolous and vexatious and is an abuse of the process of the court. [13] that there is no privity of contract between the Plaintiff and the Defendant. Furthermore, a Consent Judgment was entered into by the parties (including the Plaintiff) pursuant to a Civil Suit No. WA-22C-55- 07/2021 ( KL Suit 55 ) and in the same suit, an Injunction Order was granted against the Plaintiff wherein the Plaintiff was injunct against among others removing items from the site. [14] Based on the Statement of Claim filed by the Plaintiff, the as pleaded by the Plaintiff in paragraph 6(a) to 6(g) are the same as those recorded as prayer 1 in the Injunction Order in KL Suit 55. The Law and Findings of the Court [15] Order 18 Rule 19(1)(a), (b) and (d) of the Rules of Court 2012:

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; or

it is otherwise an abuse of the process of the Court,

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating [16] It is trite that the summary proceeding to strike out pleadings will only be exercised in plain and obvious cases which is not sustainable (see: Abdul Rahim Abdul Hamid & Ors v. Perdana Merchant Bankers Bhd & Ors [2000] 2 CLJ 457; [2000] 1 MLRA 111 [17] In the case of Bandar Builders Sdn Bhd & 2 Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 1 MLRA 611, Mohamed Dzaiddin bin Hj Abdullah, SCJ (as he then was) held that - "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 a 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, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the 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.". (Emphasis added) [18] As this application is made pursuant to Order 18 Rule 19 (1)(a) of the Rules of Court 2012, sub-paragraph (2) of the rule applies wherein no evidence can be led in the affidavit in support. Therefore, this summary proceeding is based on the pleadings only as stated in the case of Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192 where the Court of Appeal had stated the legal principles: d under O18 r 19(1)(a), ie do not have to look at the affidavits as no such evidence shall be admissible: O18 r19(2). We must consider only the pleadings for the purpose of determining whether, in the pleadings for the purpose of claim discloses a reasonable cause of action. The expression existence of which entitles one person to obtain from the court a remedy of which entitles one person to obtain from the court a remedy QB 232 at p 242; [1964] 2 All ER 929 at p 934. The test to be applied is whether on the face of the pleadings, the court is prepared to say [19] In applying the above principles, in this case, it is undisputed that there is no written or any other form of contract(s) made between the Plaintiff and the Defendant. Therefore, there is no dispute that there is no privity of contract between them which could give rise to a breach of the same forming a cause of action. On this fact alone, it can be concluded that this is a plain and obvious case which is unsustainable. [20] As to whether the Plaintiff agreement by the Defendant based on the meeting held on 22.10.2021 can form a cause of action, the Plaintiff has relied on letters written to the Defendant from February 2022 onwards as prove that the there was an agreement between them. [21] This allegation was denied by the Defendant and the court was directed to the Injunction Order dated 28.10.2021 granted in KL Suit 55 as shown below:- [22] Therefore, I find the Plaintiff allegation that there is the breach of agreement unfounded. [23] Despite the above shown Injunction Order, being granted the aim to be scandalous, vexatious and frivolous and is an abuse of the process of the court pursuant to rule 19(1)(b) and (d) respectively. It is utterly clear that the process of the court has not been used with bona fide intentions and manner (see: Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd (supra) and See Thong & Anor v. Saw Beng Chong [2012] 1 LNS 817; [2013] 3 MLJ 235). [24] The Plaintiff had also raised in its submission that the caused of action in this case is in tort as s.71 of the Contract Act 1950 was invoked. However, s.71 was not pleaded by the Plaintiff. As such, it is obvious to the court that the Plaintiff reliance on s.71 was a mere afterthought. Be that as it may, the injunction order dated 28.10.2021 has denied the Plaintiff the right to this claim. [25] In the upshot, I am satisfied that the summary process under this rule ought to be exercised as I find this as a plain and obvious case which is not sustainable. Therefore, allowed with costs of RM10,000.00 to be paid by the Plaintiff to the Defendant subject to allocatur fee.