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2022 MarsdenLR 1877
HIGH COURT SABAH & SARAWAK KOTA KINABALU
BACHO KADA – Appellant
Versus
BABYANA BARU – Respondent
[Suit No: BKI-22NCVC-1/1-2022]
A plaintiff must disclose a reasonable cause of action against a defendant; if weak, claims may still not be struck out if they can be saved by amendments.
Headnote:(A) Rules of Court 2012 – Order 18 rule 19 – Order 92 rule 4 – Application to strike out Amended Writ and Statement of Claim – Court evaluated whether the Amended Statement of Claim disclosed a reasonable cause of action against the Defendant. – Plaintiff alleged no cause of action as he failed to challenge the default judgment obtained by the Income Tax Department against him which was central to his claims against the Defendant. – The Court held that the claim could be saved by amendment if necessary, indicating potential for a valid claim of indemnity based on the circumstances of the case. (Paras 1-34)
Facts of the case: The Plaintiff claims against the Defendant for indemnity related to a default judgment for tax liabilities, asserting that the Defendant, as subcontractor, received payments from the government under several contracts.
Findings of Court: The claim was held to warrant further examination and could potentially be amended, rejecting the Defendant's claims to strike out. Plaintiff's claims could not be dismissed outright as the circumstances, while weak, raise enough merit for consideration in court. (Paras 30-34)
Issues: The primary issue was whether the Plaintiff's Amended Statement of Claim disclosed sufficient cause of action under the relevant rules despite the existence of a default judgment against him.
Ratio Decidendi: The Court ruled that the Plaintiff's claim for indemnity might arise out of his contractual relationship with the Defendant and emphasized the potential for amendment of pleadings rather than outright dismissal. The test to strike out required clear indication of no reasonable cause of action. (Paras 27-34)
Result: The Defendant's application to strike out the Plaintiff's claims was dismissed with costs. The Plaintiff was directed to file a re-amended Statement of Claim. (Paras 34)
JUDGMENT
(Enclosure 14)
[1] This is an application by the Defendant to strike out the Amended Writ (Encl 7) and the Amended Statement of Claim (Encl 6) pursuant to O 18 r 19(a) and (2) and/or O 92 r 4 ROC 2012.
[2] The grounds of this application are as follows:
1. The Plaintiff's claim is premised on a Judgment in Default entered against the Plaintiff in a legal action taken out by the Income Tax Department for the sum of RM1,684,189.55 with interest and costs [See: Paragraph 32 of Encl 6].
2. There was no pleading in the said Encl 6 that the Plaintiff had challenged the said Judgment in Default. The said Judgment in Default is against the Plaintiff and not the Defendant.
3. There was no third party proceedings taken against the Defendant in the said suit between the Income Tax Department and the Plaintiff.
4. Paragraph 33 of Encl 6 does not constitute a cause of action.
5. The Plaintiff is not entitled to the mandatory relief sought in para 36(a) of Encl 6 on there ground that the Plaintiff has no cause of action against the Defendant.
[3] At p 1 of her written submission (Encl 21), the Defendant reiterated that she is only relying on limb (a) of O 18 r 19 ROC 2012. The Defendant submitted that in the case of Muhammad Zamri Vinoth Bin Kalimuthu v. Arumugam A/L Dorasamy , Mohd Nazlan J, as his Lordship then was, held that:
"[16] It is also well settled that as for limb (a), and as stated in O 18 r 19(2) above, examination could only be made of the pleadings, not the affidavits evidence, but where the application is premised on more than one ground under O 18 r 19(1), like in the present case, the court should ignore the affidavits affirmed in relation to the other grounds when dealing with limb (a) which ought to be considered first, before examining the affidavit evidence under the other limbs (see See Thong & Anor v. Saw Beng Chong, [2013] 3 MLJ 235)."
Contention Of The Parties
[4] The Defendant contends that in this case, the Defendant's Notice of Application was taken out under limb (a) of the O 18 r 19(1) ROC 2012, supported with no affidavit evidence.
[5] The Plaintiff filed an Affidavit in Opposition in Encl 18, purportedly to affirm that the Plaintiff has a cause of action against the Defendant. The Defendant filed an Affidavit in Reply and aver that the Plaintiff had failed to raise any reasonable cause of action in their Affidavit in Opposition to the Defendant's Notice of Application.
[6] By reason of the matters aforesaid, the Defendant contends that for the purpose of this Application, the Plaintiff's Affidavit in Opposition and the Defendant's Affidavit in Reply should not be taken into consideration in the determination of this Notice of Application taken out by the Defendant under limb (a) of O 18 r 19(1) of ROC 2012.
[7] The Defendant submit that the Amended Statement of Claim in Encl 6 is to be scrutinized carefully. From para 1 to para 31 of the Amended Statement of Claim, the Plaintiff seems to have pleaded 5 subcontract with no particulars of the subcontract and the terms of the subcontract.
[8] By para 32 of the Amended Statement of Claim, the Plaintiff pleaded that the Income Tax Department had obtained a default judgment against the Plaintiff for the sum of RM1,684,189.55 together with interest and costs.
[9] By para 33 of the Amended Statement of Claim, the Plaintiff pleaded that the Income Tax Department filed a Bankruptcy Notice against the Plaintiff demanding for payment of the default judgment sum. The Plaintiff also pleaded that the Plaintiff had met with the Income Tax Department and explained the involvement of the Defendant. Was that a valid defence against the claim by Income Tax Department? If it was, why did the Plaintiff not instruct their lawyer to file an application to set aside the Default Judgment and enter a defence. In so doing, they can commence a third party action against the Defendant if they think that they have a cause of action against the Defendant arising out of the cl
