Strict compliance with procedural requirements in defamation and malicious prosecution claims is essential; failure to do so renders such claims invalid.

JUDGMENT

Moses Susayan JC:

Introduction

[1] The appellant's appeal arises from the Sessions Court 's dismissal of its application to determine three legal questions under O 33 rr 2 and 5 of the Rules of 2012. Following the filing of the appeal, the respondents raised preliminary objections, asserting that the appeal was incompetent and non-appealable under s 28(1)(a) and (c) of the Courts of Judicature Act 1964 (CJA). The appellant, however, argued that the case involves legal questions, falling within the exception of s 28(1)(a). After reviewing the preliminary objections, I concluded that the substantial appeal indeed raises questions of law and therefore qualifies as an exception under s 28(1)(a) of the CJA, making the appeal valid and competent. I dismissed the preliminary objections with costs in the cause and allowed the appeal to proceed on its merits.

Background Facts

[2] Meru Valley Resort Berhad (appellant), a housing developer, filed a claim against respondents the bungalow owners, over unpaid maintenance and security charges for services provided within the appellant's resort. Under the Sale and Purchase Agreement, the respondents were contractually obligated to contribute to the costs of common services, including infrastructure maintenance, landscaping, and security services.

[3] The appellant alleges that, despite enjoying these facilities, the respondents stopped making full payments after 19 May 2017, resulting in an outstanding amount of RM5,735.89 as of 13 May 2022, along with accrued late payment interest. They argue that the non-payment constitutes a clear breach of contract, as the resort's facilities, such as roads, street lighting, and security at main entrances, benefit all residents.

[4] In response, the respondents claim that the appellant failed to meet their contractual obligations, particularly in providing adequate security services. They contend that, as of 1 March 2016, the appellant ceased providing security guards for the bungalows, forcing residents to hire private security services. The respondents also counterclaimed, seeking a declaration that the appellant breached the Sale and Purchase Agreement, as well as exemplary and aggravated damages for libel and slander stemming from accusations made by the appellant. Additionally, they claim damages for mental distress caused by the appellant's alleged malicious and baseless legal actions.

[5] As a result of these disputes, the appellant filed suit to recover the outstanding maintenance charges, while the respondents filed counterclaims for declarations and damages related to defamation and malicious prosecution. At the first-instance Court , the appellant applied to summarily determine the respondents' counterclaim by inviting the Court to determine three (3) legal questions under O 33 rr 2 and 5 of the Rules of 2012 and if answered affirmatively would result in the striking out of the defendants' counterclaims The Sessions Court dismissed the application prompting this appeal.

[6] After careful consideration of the submissions from both parties, this Court finds in favour of the appellant and allows the appeal on all three questions forming the issues in the substantive appeal.

Question 1: Whether The Respondents' Defamation Counterclaim Is Valid Despite Procedural And Substantive Deficiencies

[7] The respondents' counterclaim for defamation was predicated on alleged defamatory statements made in a letter issued by the appellant. The appellant argued that the counterclaim is unsustainable on three grounds:

a. Defamatory Words Were Not Pleaded In Bahasa Melayu

[8] The respondents did not translate the alleged defamatory words into the national language, as required by the Court of Appeal in Rekha Munisamy v. Ortus Expert White Sdn Bhd & Anor; [2021] 5 MLJ 836; [2021] 7 CLJ 353. The Court of Appeal ruled that failure to translate alleged defamatory statements into Bahasa Melayu with a certified translation is fatal to a defamation claim as it