A claim should not be struck out unless it is plainly unsustainable; the plaintiff must be given the opportunity to prove his case at trial.

JUDGMENT

Kenneth St James JC:

Prelusion

[1] The 1st Defendant to the 4th Defendant company (D1-D4Co) applies to strike out the Plaintiff's (P) claim as against them. D1-D4 applies to strike out P's Writ and Statement Of Claim (SOC) under limbs (a), (b) and (d) of O 18 r 19(1) of the Rules Of 2012.

[2] Limb (a) is the ground that P's SOC discloses no reasonable cause of action against D1-D4Co. Limb (b) is the ground that P's SOC is scandalous, frivolous or vexatious. And limb (d) is the ground that P's SOC is an abuse of the process of the Court.

[3] Should P's claim against D1-D4Co be struck out in this case?

P's Causes Of Action Against D1-D4

[4] P pleads that D1-D4Co breached their contract with P; that D1- D4Co cheated P; and that D1-D4Co committed a fraud on P. P's causes of action against D1-D4Co are for breach of contract, cheating and fraud.

The Pertinent Pleaded Facts

[5] D1 owns D4Co. D1, D2 and D3 are directors of D4Co. I will refer to D1, D2 and D3 together as "D1D2D3".

[6] D5 and D6 are partners in a firm (business).

[7] D5 and D7 are partners in another firm (another business).

[8] D1 and D5 have various businesses, such as hotels, an aquaponic farm, an oil palm plantation, a rubber plantation, and a durian orchard.

[9] In April 2019, D1D2D3 and D5 asked P to invest in their businesses. P told them that he did not want to invest in their businesses, but he would, instead, give them a loan. They agreed, and D1 and D5 promised to return P's money by 31 December 2020.

[10] P banked approximately RM4.78 million into D4Co's account.

[11] The Defendants failed to return the money to P by 31 December 2020.

[12] P also discovered that the businesses that D1 and D5 represented that they had, were dormant or not in operation.

P's Prayer In The Application

[13] Foremost, I would like to point out that D1-D4Co's striking out Application prays that an Order be given to strike out P's claim entirely ie not only as against D1-D4Co, but as against all the Defendants.

The Law On Striking Out Pleadings

[14] A review of the law on striking out pleadings under O 18 r 19(1) is found in the Federal Court case of Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin Ee) & Ors v. Malaysian Airlines Bhd & Other Appeals, 2018 MarsdenLR 2584 ; [2018] AMR 529.

[15]Tan Wei Hong (supra) sets out:

[15] Order 18 r 19 of the ROC provides:

19. Striking out pleadings and endorsements (Order 18 r 19)

(1) The Court may at any stage of the proceedings order to be stuck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action;

or

(d) it is otherwise an abuse of the process of the Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2)No evidence shall be admissible on an application under paragraph (1)(a).

(3)This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

[16] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, 1993 MarsdenLR 99 (SC); Hubbuck & Sons, Limited v. Wilkinson, Heywood & Clark, Limited [1899] 1 QB 86; Attorney-General of the Duchy of Lancaster v. London and North Western Railway Company[1892] 3 Ch 274).

[17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: 2018 MarsdenLR 2584 (SC) at 68

(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

(b) this summary procedure can only b