A claim can be struck out if it is obviously unsustainable and premature if it does not comply with settlement terms.

JUDGMENT

Mohd Arief Emran Arifin JC:

A. Introduction

[1] The Defendants have applied to strike out the Originating Summons filed by the Plaintiff.

[2] There are two applications before this Court filed by the Defendants:

(i) Enclosure 8 - Application by the 2nd Defendant under O 18 r 19(1)(a), and/or (b), and/or (d) of the Rules of 2012.

(ii) Enclosure 10 - Application by the 1st Defendant under O 18 r 19(1)(a), and/or (b), and/or (c), and/or (d) of the Rules of 2012.

[3] The grounds relied on by both Defendants are summarised as follows:

(i) The Plaintiff does not have a valid cause of action against the Defendants.

(ii) The Expert report dated 12 May 2021 by PWC Consulting Associates (M) Sdn Bhd ("Expert Report") is not binding on parties to this suit.

(iii) The Expert Report provides 4 alternative distinct outcomes ("4 scenarios") that depart from the terms of the engagement, are inconclusive, and not enforceable.

(iv) The Originating Summons is premature - the issue of the beneficial ownership must be decided first even if the Expert Report is an enforceable instrument.

[4] The 1st Defendant further argues that the Expert Report is not conclusive and contains manifest errors. As a result of which, the 1st Defendant contends that the Originating Summons is not binding on the parties.

[5] It is common ground for the Defendants that the Plaintiff does not have a valid cause of action and it is an abuse of process of Court. The 1st Defendant adds that the Plaintiff's claim is (a) scandalous, frivolous, or vexatious and (b) may prejudice, embarrass, or delay the fair trial of the action.

[6] The Plaintiff's claim, as it appears in the Amended Originating Summons, are summarised as follows:

(i) The litigants in this suit did enter into a Settlement Agreement.

(ii) Under cl 2 of the Settlement Agreement, parties had agreed to appoint PWC Consulting Associates (M) Sdn Bhd ("PWC") as the Expert to resolve the dispute between parties and the conflicting claims relating to the property and that the said report is binding on parties.

(iii) Subject to the determination of the Plaintiff's claim in the Kuala Lumpur High Court WA-22NCVC-222-05/2020 concerning the ownership of the properties that are subject of the Expert's decision and determination obliges the Defendants to pay the Plaintiff the sums prayed for in the Originating Summons.

[7] The Originating Summons also contain, inter alia, the following prayers sought against the Defendants:

(i) A declaration that the decisions and determination in the report dated 12 May 2021 issued by PWC Consulting Associates (M) Sdn Bhd under the Settlement Agreement are binding on the parties to this suit.

(ii) With respect to the 1st Defendant, a declaration that the 1st Defendant is obliged to pay the sum of RM5, 126, 069.00 or such other sum as determined by this Honourable Court to the Plaintiff pursuant to cl 3.2 of the Settlement Agreement.

(iii) An order that the 1st Defendant pays to the Plaintiff the sum ordered to be paid within a period of 7 days from the date of the order.

(iv) With respect to the 2nd Defendant, a declaration that the 2nd Defendant is obliged to pay the sum of RM253, 943.00 or such other sum as determined by this Honourable Court to the Plaintiff pursuant to cl 3.2 of the Settlement Agreement.

(v) An order that the 2nd Defendant pays to the Plaintiff the sum ordered to be paid within a period of 7 days from the date of the order.

(vi) Interest at the rate of 6.6% per annum or such other rate as this Honourable Court from the date of judgment or such other date as this Court may direct until the date of full settlement by the Defendants.

B. The Law On Striking Out A Pleading Or Originating Summons

[8] I shall not repeat the applicable law concerning an application filed according to any of the limbs available O 18 r 19 of the Rules of .

[9] It is trite law that I should only exercise my power to strike out the Writ and the Statement of Claim if it is shown that the claim is so obviously unsusta