A claim cannot be struck out for insufficient particulars if it presents a triable issue, especially in cases involving allegations of fraud and conspiracy where the plaintiff may have valid causes of action requiring trial.

JUDGMENT

(Enclosure 19)

Hayatul Akmal Abdul Aziz J:

[1] The 2nd and 3rd Defendant's ("D2" and "D3") applied to strike out the 25 Plaintiff's Statement of Claim dated 18 December 2020 under O 18 r 19(1)(a) and/or (b) and/or (c) and/or (d) of the Rules of 2012 and this Court's inherent jurisdiction under O 92 r 4 of the Rules of 2012 (" ROC 2012").

[2] The relevant cause papers and written submissions are as follows:

(i) Notice of Application dated 22 July 2021 (enclosure 19);

(ii) Affidavit in Support affirmed by Saravanan a/l Mariappan (and authorised by Razali Wan Teh to affirm this affidavit on his behalf), on 21 July 2021 (enclosure 20);

(iii) Affidavit in Reply affirmed by Mohammad Fadzllee Bin Mustapa on 18 August 2021 (enclosure 21);

(iv) Affidavit in Reply affirmed by Saravanan a/l Mariappan (and authorised by Razali Wan Teh to affirm this affidavit on his behalf) on 13 September 2021 (enclosure 24);

The Parties' Respective Written Submissions/Replies.

[3] Parties were heard on 1 December 2021. After perusing the cause papers filed, respective written submissions of parties, I dismissed encl 19 with costs of RM3,000.00 to be paid by D2 and D3 within 14 days. Dissatisfied, D2 and D3 filed this appeal, and my reasons are as follows:

Brief Facts

[4] The brief facts as gathered from the parties' submissions and cause papers are as follows:

(a) Both the plaintiff and first defendant (D1) are companies incorporated 50 under the Companies Act 1965, whereas D2 and D3 are the employees of D1.

(b) Via a Letter of Award dated 16 October 2019 ("the LOA"), the plaintiff was appointed to provide security guards services ("the Services") at five (5) station branches owned by D1, commencing from 1 September 2019 to 31 August 2022. A requirement under the LOA stipulates that a performance guarantee ("PG") for the services was to be provided by the plaintiff in the sum of RM319,451.75, which was remitted to the D1.

(c) The plaintiff claimed that the services had been unfairly terminated by D1, through D2 and/or D3 via the Notice of Default dated 1 October 2020 ("the NOD") at 7.00 am by giving a 24-hour termination notice, alleging that the plaintiff had breached the terms in the LOA. D1, through D2 and/or D3, encashed the PG despite the plaintiff's efforts in furnishing an explanation and attempts to pursue a settlement with the Defendants. The forfeiture of the PG is unjust in the circumstances of the case.

(d) The plaintiff admitted that the leading cause of action is premised on the LOA, but it had included D2 and D3 based on conspiracy to defraud the plaintiff where the defendants had continuously and arbitrarily acted contrary to the terms of the LOA. The defendants had colluded and/or conspired to defraud the plaintiff.

[5] D2 and D3's grounds in support of encl 19

(a) Lack in particulars for the alleged fraudulent and/or wrongful acts;

(b) The main dispute is a contractual dispute between the plaintiff and D1, which D2 and D3 are not privy to;

(c) The termination of the LOA and the uplifting of the PG by D1 do not involve D2 and D3;

(d) The claim against D2 and D3 has not been sufficiently pleaded.

(e) This is a just and appropriate case for striking out under O 18 r 19(1)(a) and/or (b) and/or (c) and/or (d) of RC 2012

Submission By The Second And Third Defendants (D2 & D3)

[6] They argued that:

(a) The dispute between the plaintiff and D1 arises from an LOA dated 16 October 2019 and an acceptance letter dated 25 October 2019 ("Acceptance Letter"‌).

(b) The plaintiff was awarded the contract to provide security guard services to the various locations, including the power plants operated by D1 and/or its subsidiaries.

(c) The contract price was based on a salary cap of RM6,389,035.02 and an overtime claim of RM638,903.50 ("Contract Price") for a contract period was from 1 September 2019 to 31 August 2022.

(d) The plaintiff was to provide performance security in the sum of RM319,451.75.

(e) Under cl 7.29 of the LOA, the plaintiff agreed that it would carry out