The court emphasized that striking out applications should only succeed in clear cases, allowing claims to proceed if they disclose a reasonable cause of action, necessitating a full trial for factual disputes.

JUDGMENT

(Enclosure 16)

Mustaffa Yussof Ahmad J:

[1] This is my decision on the application of 2nd Defendant, Terence Tan Koon Ping, ("Terence") to strike out the Plaintiffs' claim against him pursuant to O 18 r 19(1)(b) and/or (d) of the Rules of 2012. Having considered the arguments and evidence presented by both parties in their written submissions and affidavits, I find that the Plaintiffs have shown that their claim against Terence is not obviously unsustainable to warrant a summary dismissal at this stage. Accordingly, Terence's striking out application is dismissed with costs to be paid to the Plaintiffs.

[2] The reasons for my decision are as follows.

Whether Terence Breached His Fiduciary Duties As A Director Of KNM Group Berhad By His Acts Or Omissions In Relation To The April Agreement And April Agreement 2nd Amendment Concerning The Proposed Sale Of Borsig GmbH?

[3] Terence submitted that the Plaintiffs' claims against him ought to be struck out as they are scandalous, frivolous, vexatious and/or an abuse of process. He contended that he was not responsible for advising the KNM Board on the Borsig sale, which was the purview of the Restructuring Committee, with the 1st Defendant, Flavio Porro, ("Flavio") as the primary director handling the deal negotiations. He argued that the Board had approved the Borsig sale for a proper purpose and was aware of the key terms in the April Agreements through the Restructuring Committee's advice. Terence thus claimed he could not be in breach of any duties for agreements he was not directly involved in executing.

[4] The Plaintiffs argued that their claim against Terence is not obviously unsustainable. They submitted that Terence, as the Group CEO and Executive Director, had a responsibility to oversee the Borsig transaction together with Flavio and alert the Board to any prejudicial terms The Plaintiffs contended there are triable issues as to whether the Board meaningfully approved the April Agreements, given the disputes over the timing and extent of disclosure. They maintained that these factual disputes on the scope of Terence's duties and whether he properly discharged them cannot be determined summarily and necessitate a full trial.

[5] The principles governing striking out applications are well-established. The Court must be cautious in terminating a claim summarily and should only do so in plain and obvious cases where the claim is clearly unsustainable. As held in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd , , "so long as the pleadings disclose some cause of action or raise some question fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed at trial is not grounds for striking out."

[6] Further, in Pengiran Othman Shah Pengiran Mohd Yussof & Anor v. Karambunai Resorts Sdn Bhd & Ors, , the Court of Appeal emphasised that "the power to dismiss an action summarily is a drastic power that should only be exercised in plain and obvious cases where it is clear the case has no chance of success."

[7] Having carefully considered the pleadings and affidavit evidence, I find that Terence has not met this high threshold to summarily terminate the claim against him at this interlocutory stage. While he has raised substantive arguments on the apparent lack of merit, they are insufficient to establish that the Plaintiffs' case is plainly and obviously unsustainable.

[8] At the heart of the dispute are questions on the precise scope of Terence's role, responsibilities and duties in relation to the Borsig sale. Although there is evidence that the Restructuring Committee and Flavio were directly advising the Board, it is at least arguable that Terence had an overarching duty as Group CEO to alert the Board to any agreements that could significantly impact the Plaintiffs, regardless of his direct involvement in the execution.

[9] The Plaintiffs have shown enough at this stage to establish a prima facie case that Terence may have breached hi