A claim should not be struck out unless it is plainly unsustainable; parties must be allowed their day in court to prove their cases.

JUDGMENT

Kenneth St James JC:

(Striking Out)

Prelusion

[1] The Plaintiff (P) filed this suit against the five Defendants here. The 1st Defendant (D1/PERDA) applies to strike out P's claim (DI/PERDA's Striking Out Application).

[2] D1/PERDA applies to strike out P's claim under all four limbs of O 18 r 19(1). Under limb (a), DI/PERDA's ground is that P's claim discloses no reasonable cause of action. Under limb (b), D1/PERDA's ground is that P's claim is scandalous, frivolous or vexatious. Under limb(c), D1/PERDA's ground is that P's claim may prejudice, embarrass or delay the fair trial of the suit. And under limb (d), D1/PERDA's ground is that P's claim is an abuse of the process of the Court.

[3] Should P's claim be struck out as against D1/PERDA?

The Parties And The Pertinent Pleaded Facts

[4] P is a construction industry contractor. D1/PERDA is a statutory body whose purpose is to develop the state of Penang. The 2nd Defendant (D2) is D1/PERDA's Chairman. The 3rd Defendant company (D3Co) is a construction company. The 4th and 5th Defendants (D4D5) are D3Co's directors and shareholders.

[5] D1/PERDA is the owner of the subject project

[6] D3Co is the main contractor for D1/PERDA's project.

[7] P was brought in as a Rescue Contractor to complete the construction works for the project.

P's Causes Of Action Against The Defendants

[8] These are the pleaded causes of action against each Defendant. Against D1/PERDA—P's cause of action is for breach of contract.

[9] Against D2—the cause of action is for breach of fiduciary duty. Against D3Co—the cause of action is for breach of contract. Against D4 and D5—the cause of action is for breach of fiduciary duty.

The Principles For Striking Out

[10] It is well established that so long as P's pleadings disclose a reasonable cause of action, the matter should proceed to trial: (1) Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, 1993 MarsdenLR 99 ; (2) Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795; (3) Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v. Malaysian Airlines Bhd & Other Appeals, [2019] 1 MLJ 59 ; [2018] AMR 529.

[11] A review of the law on SOut is found in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v. Malaysian Airlines Bhd & Other Appeals, [2019] 1 MLJ 59 ; [2018] AMR 529.

[12] In Tan Wei Hong, the Federal Court, through the written judgment of Justice Ramly Ali FCJ, sets out as follows:

[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