Chapter 18 - Striking Out, O.18, r.19

Question 1

STRIKING OUT

Overview

Answer 1

1) General principles on striking out
2) Test for striking out
3) Exercise of power to strike out
4) Burden of proof
5) Requirements to apply for striking out
6) Grounds to strike out
7) Re-instatement of suit
8) Res judicata

Question 2

GENERAL PRINCIPLES ON STRIKING OUT

Overview

Answer 2

1) General rule & exceptions
2) Election by P
3) Procedures to file for striking out

Question 3

GENERAL PRINCIPLES ON STRIKING OUT

General rule & exceptions

Answer 3

Republic of Peru v Peruvian Guano Vo:

General rule:

• pleadings will not be struck out;
• If the Court sees that a substantial case is presented, the court should decline to strike out that pleading notwithstanding the defects in the pleadings;

Exceptions:

• When no legitimate amendment can save it from being demurrable.
• When the pleading discloses a case which the Court is satisfied will not succeed.

Question 4

GENERAL PRINCIPLES ON STRIKING OUT

Election by P

Answer 4

Mohd Azam Shuja v UMBC Bhd (CA):

• P ought to be put to election as which he application he intends to proceed with O.14 or O.18, r.19.
• In practice, O.18 r.19 tends to be the exclusive province of D to strike-out P’s claim, as there is no other provision in the RHC that allows D to do so.

Question 5

GENERAL PRINCIPLES ON STRIKING OUT

Procedures to file for striking out

Answer 5

• Notice of application in Form 57 (O.32, r.1) supported by affidavit.
• Affidavit:

i) Specify which ground is the party relying on
ii) Specify whether to strike-out whole or part of pleadings.

Question 6

TEST FOR STRIKING OUT

The test

Answer 6

Bandar Builder v UMBC Bhd:

• It is only in plain and obvious cases that recourse should be had to the summary process under this rule;
• 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”.
• 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
• 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.

Question 7

TEST FOR STRIKING OUT

Applicability of the test

Answer 7

Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur (FC, 2016)

• The tests as adopted in Bandar Builder is applicable across the board, including action grounded on fraud.

Question 8

TEST FOR STRIKING OUT

Meaning of plain & obvious

Answer 8

Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd & Anor:

• Under O.18, r.19 pleadings will only be struck out in plain and obvious cases.
• If the statement of claim discloses some ground of action, it is not plain & obvious;
• The mere fact that the plaintiff is unlikely to succeed at the trial is no ground for striking out.
• i.e. unlikely to succeed =/ plain & obvious =/ ground for striking-out.

Question 9

TEST FOR STRIKING OUT

Meaning of obviously unsustainable

Answer 9

1) Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur (FC, 2016)

• The court should not strike out an action purely or for the simple reason that it is “unsustainable”.
• The degree of “unsustainability” must be higher, ie, it must be “obviously unsustainable” before the action can be struck out summarily.
• The tests as adopted in Bandar Builder is applicable across the board, including action grounded on fraud.

2) Pet Far Eastern (M) Sdn Bhd v Tay Young Huat:

• the emphasis in not on the word “unsustainable” but rather on the word “obviously”;
• it means the claim of defence must be plainly unsustainable in law.
  i. e. plainly, on the face of it.

Question 10

STRIKING OUT

Exercise of power to strike out

Answer 10

Bandar Builder v UMBC Bhd:

1) NO EXAMINATION OF DOCUMENTS:
- 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.
2) NO DISPUTE ON POINT OF LAW:
- 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.
3) SATISFACTION:
- 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.

Question 11

STRIKING OUT

Burden of proof

Answer 11

Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd:

• The burden is on the defendant to prove that the pleadings come within O.18, r.19.

Question 12

REQUIREMENTS TO APPLY FOR STRIKING OUT

Overview

Answer 12

1) Made promptly
2) Must specify grounds
3) Overlapping grounds
4) Relying on more than one grounds
5) Duty of judge

Question 13

REQUIREMENTS TO APPLY FOR STRIKING OUT

Made promptly

Answer 13

1) Blue Valley Plantations Sdn Bhd v Periasamy v Kuppannan:

• the application must be made promptly;
• it should not be allowed after a very long delay, and all the more so where the long delay is unexplained.

2) Jamir Hassan v Kang Min:

• as a rule, it must be made before the close of the pleadings.
• The court may allow an application to be made even after the pleadings are closed but such an application would generally be refused after the action has been set down for trial.

3) cf. Effect of delay - Ong Lean Sim v Tio Kah Hin:

• Court held that such a delay on the part of the Plaintiffs would not have caused any injustice to either side except that had the substantive action been set down for hearing after the close of pleadings, the matter could have been litigated and disposed of much earlier.
• Ref. Tucker v Collinson:
  the application may be made even after the pleadings are closed.
  OTF, in the circumstances, the delay is not fatal.

Question 14

REQUIREMENTS TO APPLY FOR STRIKING OUT

Specify grounds

Answer 14

Razshah Enterprise Sdn Bhd v Arab Malaysian Finance Bhd (2010)

• The respondent’s application to strike out the appellant’s counterclaim was flawed for the simple reason that it failed to specify under what limb of the application was made.
• when resorting to the said Order, one must be very specific.

Question 15

REQUIREMENTS TO APPLY FOR STRIKING OUT

Overlapping grounds

Answer 15

Tunku Abdul Rahman Putra Al-Haj & Ors v Dato’ Seri Mahathir Mohamed:

• The grounds put forward in support of the application are that the plaintiffs’ statement of claim discloses no reasonable cause of action, is scandalous, frivolous and vexatious and is an abuse of the process of the court.
• Court held that this is a plain and obvious case for the court to exercise its inherent jurisdiction to strike out the plaintiffs’ claim.

Question 16

REQUIREMENTS TO APPLY FOR STRIKING OUT

Relying on more than one grounds

Answer 16

1) No instalments - TNB v Prorak Sdn Bhd:
- Party intending to rely on more than one of the limbs is not permitted to take out different applications based on the individuals limbs and present his case in instalments.
2) Disjunctive limbs - Sambu (M) Sdn Bhd v Stone World Sdn Bhd:

• “The word ‘or’ appears between (a), (b), (c) and (d) of O. 18 r. 19(1) and in ordinary usage the word ‘or’ is said to be disjunctive;
• Applicant must be very specific and must not cumulatively add all limbs together and lump them as one.

Question 17

REQUIREMENTS TO APPLY FOR STRIKING OUT

Duty of judge

Answer 17

Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Sdn Bhd:

• The judge did not specify under which of the limbs that she was relying upon in order to strike out.
• The judge decided that the appellant’s writ of summons and the statement of claim may be struck out based on the respondent’s application which relied on the cumulative limbs of O. 18 r. 19(1).
• The approach adopted by the judge in construing O. 18 r. 19(1) was erroneous and it called for appellate intervention;
• A judge must specify under which limbs he is striking out.

Question 18

xx

Answer 18

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Question 19

NO REASONABLE CAUSE OF ACTION

Overview

Answer 19

1) the law & approach
2) test for no reasonable of action
3) examples of no reasonable cause of action

Question 20

NO REASONABLE CAUSE OF ACTION

The law & approach

Answer 20

1) The law:

O.18, r.19(1)(a)

2) Approach - O.19, r.19(2):
- no evidence shall be admissible on an application under para. (a).
3) Approach - Zakaria bin Mohamed Esa v Dato Abdul Aziz bin Ahmed & Ors:

• NO EVIDENCE: no evidence is admissible if application is based under first limb;
• WHOLE READING: pleadings must be read as a whole & each paragraph must be viewed in relation with the others and cannot be viewed in isolation;
• ASSUMPTION OF TRUTH: all the allegations in it should be assumed to be true.

Question 21

NO REASONABLE CAUSE OF ACTION

Test

Answer 21

See Thong & Anor v Saw Beng Chong:

• Striking out under limb (a) is only appropriate in a plain and obvious case.
• 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.

Question 22

NO REASONABLE CAUSE OF ACTION

Example - defence of limitation

Answer 22

1) Limitation in CLA or PAPA - Tasja Sdn Bhd v Golden Approach Sdn Bhd:

• Limitation under CLA & PAPA is absolute;
• D may apply to strike-out even without delivering defence or pleading limitation.

2) Limitation in LA - Goh Kiang Heng v Hj Mohd Ali bin Hj Abd Majid:

• where there is a defence under the Limitation Act, D can either plead that defence and seek the trial of a preliminary issue; or
• in a very clear case, he can seek to strike out the claim on the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence.
• In no circumstances can he seek to strike out on the ground that no cause of action is disclosed.

Question 23

NO REASONABLE CAUSE OF ACTION

Example - action brought against judges

Answer 23

Hodan-R Sdn Bhd v Dato’ Mohd Hishamudin Hj Yunus:

• By virtue of S.14 CJA, no judge shall be liable to be sued.
• No action is maintainable against a Judge for anything said or done by him in the exercise of a jurisdiction which belongs to him.
• Therefore, any action brought against him is liable to be strike out under limb (a).
• The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a Writ of error or certiorari, or take some step to reverse his ruling.

Question 24

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Overview

Answer 24

1) The law & approach
2) Meaning of frivolous & vexatious
3) Meaning of scandalous
4) Scope of scandalous, frivolous & vexatious
5) Examples

Question 25

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

The law & approach

Answer 25

1) The law:
- O.18, r.19(1)(b) & (c)
2) Approach - See Thong & Anor v Saw Beng Chong:

• The court is entitled to look at the affidavit evidence adduced by the parties;
• However, the court must appreciate that it is not appropriate in striking out proceedings to resolve conflict of evidence on affidavits as the proper time for doing so is at discovery or by cross-examination of witnesses or deponents.
• Contested matter, where facts are in dispute, could not be resolved by affidavit evidence.
• In order to invoke the provisions, the underlying fact must not be in dispute and the matter is purely a question of interpretation of fact and the law.

Question 26

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Meaning of frivolous & vexatious

Answer 26

Malayan Banking Bhd v Gan Kong Yan:

• no precise legal definition can be found as yet as to the meaning of ‘frivolous or vexatious’ or ‘tending to delay the fair trial of the action’.
• These limbs are subject to the overriding principle that the pleading must be “obviously unsustainable”.

Question 27

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Meaning of scandalous

Answer 27

Harapan Permai Sdn Bhd v Sabah Forest Industries:

• The phrase “scandalous” was held to mean wholly unnecessary and irrelevant and not just unpleasant allegations.

Question 28

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Scope of scandalous, frivolous & vexatious

Answer 28

Murray v Epsom Local Board:

• ‘scandalous’ refers to matters which improperly throw a derogatory light on someone, usually a party to an action, with respect to moral character or uses repulsive language.
• The words ‘frivolous or vexatious’ refer to a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party to the action.
• In considering whether any proceedings were vexatious or frivolous, one is entitled to and ought to look at the whole history of the matter;
• it is not to be determined by whether the pleading discloses a cause of action or not.

Question 29

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Example - setting up own case

Answer 29

Lee Yoke San v Tong Lee Hwa & Anor:

• where D delivered a defence in which he either denied or refused to admit each of the allegations in the statement of claim but set up no case of his own;
• the court may, in the circumstances of the case, find the defence to be frivolous and vexatious and one which ought to be struck out as being an abuse of the procedure of the court.

Question 30

SCANDALOUS, FRIVOLOUS, VEXATIOUS & PREJUDICE

Example - existence reasonable cause of action

Answer 30

Abdul Rahim bin Abdul Hamid & Ors v Perdana Merchant Bankers Sdn Bhd & Ors:

• since the court had found that the statement of claim did disclose a reasonable cause of action, the inevitable conclusion was that the statement of claim could not be said to be scandalous, frivolous or vexatious.
• The court was unable to say that the claim was not bona fide or that the claim was bound to fail from the beginning.
• This was therefore not a proper case for the court to exercise its summary power under O.18 r.19.

Question 31

ABUSE OF THE PROCESS OF THE COURT

Overview

Answer 31

1) The law & approach
2) Meaning of abuse of process
3) Effect of abuse of process
4) Examples of abuse of process

Question 32

ABUSE OF THE PROCESS OF THE COURT

The law & approach

Answer 32

1) The law:

O.18, r.19(1)(d)

2) Approach - Kerajaan Malaysia v Mat Shuhaimi Shafiei (2018):

• The approach should be broad, merits-based judgment;
• Takes account of the public and private interests involved;
• Also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before;
• The ‘merits’ in the phrase ‘broad merits-based judgment’ were not the substantive merits or otherwise of the actual claim;
• but those relevant to the question whether the claimant could or should have brought his claim as part of the earlier proceeding.

3) Where D has entered defence - Boo Are Ngor v Chua Mee Liang:
- Where a defendant to a suit which is an abuse of process has taken part in the suit, he is not estopped, by virtue of such participation from subsequently having it struck out.

Question 33

ABUSE OF THE PROCESS OF THE COURT

Meaning of abuse of process

Answer 33

1) Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd:

• It is an abuse of process where the true purpose for invoking the court’s process is something other than to obtain a remedy provided by law;
• i.e. to oppress a defendant, to apply pressure upon him which the law regards as illegitimate, to merely commence an action and let it hang over the head of the defendant with no intention of bringing it to a conclusion.

2) Goldsmiths v Sperrings Ltd & Ors:

• It is abused when it is diverted from its true course so as to serve extortion or oppression; or
• To exert pressure so as to achieve an improper end.

Question 34

ABUSE OF THE PROCESS OF THE COURT

effect of abuse of process

Answer 34

1) Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd:

• Where an action is found to be an abuse of the court’s process, it may be struck out or stayed.
• If it is too late to do this, the party aggrieved may bring an action based upon the tort of abuse of process.

2) Goldsmiths v Sperrings Ltd & Ors:

• The judges can and will intervene to stop it; they will stay the legal process, if they can, before any harm is done.
• If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.

Question 35

ABUSE OF THE PROCESS OF THE COURT

example - winding up petition

Answer 35

Ansa Teknik (M) Sdn Bhd v Cygal Sdn Bhd:

• there was a bona fide dispute as to the amount that was owing to the petitioner which was the subject of the civil suit & it had not been properly discontinued for want of leave of the court under O 21 r 2(1) so that the civil suit could be considered as still pending between the parties;
• the filing of the notice of discontinuance and the subsequent presentation of the winding-up petition were all acts to circumvent the normal course of going to trial after the dismissal of the application for summary judgment under O.14 and to embarrass [D].
• In the circumstances it is considered the presentation of the winding-up proceedings as an abuse of the process of the court and accordingly ordered that the petition be struck out.

Question 36

ABUSE OF THE PROCESS OF THE COURT

example - judicial review

Answer 36

Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor & Ors:

• If a matter falls within the ambit of the judicial review procedure for challenging the validity of the public authority or public officer’s decision, an ordinary civil action filed to challenge such decision would be an abuse of process.

Question 37

ABUSE OF THE PROCESS OF THE COURT

example - challenge to constitutionality which has been taken in criminal appeal

Answer 37

Kerajaan Malaysia v Mat Shuhaimi Shafiei (2018):

• An application for a declaration that s. 3 of the Sedition Act read with s. 4 the same Act was inconsistent with art. 10(1)(a) of the FC could not stand as it was found to be an abuse of process;
• Same question has been determined by CA in criminal appeal involving the applicant.
• Application should be dismissed without the need to consider the merits of the application.

Question 38

STRIKING OUT

Re-instatement of suit

Answer 38

Kesatuan Pekerja Malaysia Shipyard Engineering Sdn Bhd v Malaysia Shipyard & Engineering Sdn Bhd:

• Firstly, an applicant could not require a court to reinstate a matter which has been struck out as of right.
• Secondly, reinstatement involves an exercise of the court’s discretion.
• Thirdly, there must be sufficient material before the court to enable it to exercise its discretion in the applicant’s favour.

Question 39

RES JUDICATA

Overview

Answer 39

1) Meaning
2) Types of estoppel
3) Scope & applicability of res judicata
4) Exceptions to rules of res judicata
5) Inherent jurisdiction to dismiss
6) Examples of res judicata

Question 40

RES JUDICATA

Meaning

Answer 40

Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd:

• Res judicata simply means a matter adjudged;
• its significance lies in its effect of creating an estoppel per rem judicatum.
• When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties;
• The public policy of the law is that, it is in the public interest that there should be finality in litigation.

Question 41

RES JUDICATA

Types of estoppel

Answer 41

Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd:

1) Cause of action estoppel:

• arises when rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment and such right of action;
• i.e. the cause of action merges into the said final judgment.

2) Issue estoppel:

• means simply an issue which a party is estopped from raising in a subsequent proceeding.
• i.e that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties

Question 42

RES JUDICATA

Scope & applicability of res judicata

Answer 42

1) Letchumanan a/l Gopal (representative for the estate of Rajammah a/p Muthusamy, deceased) v Pacific Orient & Co Sdn Bhd (CA, 2011):

• The principle of res judicata expresses a general public interest policy that the same issue (or cause of action) should not be litigated more than once even if the parties are different.
• It prevents vexatious litigation and any abuse of the courts’ process on the premise that final judgments are binding and conclusive.

2) Applicability of the doctrine of res judicata - Joseph Paulus Lantip v Unilever PLC (FC, 2012):
- For the doctrine of res judicata to apply, same issues must have been raised & decided in an earlier proceeding or action of which the parties are represented.

Question 43

RES JUDICATA

Exception to rules of res judicata

Answer 43

Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor (2019, FC):

• exceptions to the doctrine of res judicata are limited to fraud or where evidence not available at the original hearing becomes available.
• when there is allegation of fraud or evidence not available at the original hearing becomes available, res judicata is not applicable.
• therefore, matter may be adjudge again.

Question 44

RES JUDICATA

Inherent jurisdiction to dismiss

Answer 44

Supritendent of Pudu Prison v Sim Kie Chong:

• The court has the inherent jurisdiction to dismiss an action by applying the doctrine of res judicata against a party even if it has not been pleaded.

Question 45

RES JUDICATA

Example - agent & principal

Answer 45

Wong Peng Yan Benjamin v Genting Bhd & Anor:

• High Court held that having sued the agent, P’s suit against the principal for the same transaction was barred by res judicata

Question 46

RES JUDICATA

Example - lack of locus

Answer 46

Dato’ Ahmad Johari Tun Abdul Razak v A Santamil Selvi Alau (CA, 2020):

• A defendant whose action has been struck out under O. 18 r. 19 for reason of lack of locus standi is barred by res judicata from reopening an action;
• This is so even under the ground of availability of fresh evidence if the application’s net effect is to re-litigate the action against the same parties on the same facts and for the same relief;
• More so when the alleged fresh evidence was available when the first suit was filed and no explanation was proffered as to why it has not been adduced in the first suit.

Question 47

STRIKING OUT PLEADINGS

Striking out under inherent jurisdiction

Answer 47

1) Source of power - Hamzah TR & Yeang S/B:
- Court has unlimited jurisdiction to make any interlocutory order necessary for proper administration.
2) Examples:
- Re Lo Siong Fong: court exercise its inherent jurisdiction to strike out a winding up petition.