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2021 MarsdenLR 1842
HIGH COURT MALAYA KUALA LUMPUR
FUN FATT – Appellant
Versus
DATUK BANDAR KUALA LUMPUR – Respondent
[Suit No: WA-21NCVC-78-10/2020]
A claim must show a reasonable cause of action with proper standing; failure to satisfy these leads to dismissal under Order 18 Rule 19 of the Rules of Court 2012.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19(1) – Plaintiff's action for damages for trespass was struck out due to failure to disclose a reasonable cause of action; the plaintiff lacked locus standi as the land had been acquired and vested in the State Authority; relevant case law and legislative provisions underscored the need for proper standing. (Paras 6, 32, 39)
(B) Locus Standi – The claim made by the administrator of the Deceased’s estate failed since the estate no longer included the land in question after it was vested with the state authority post-acquisition. (Paras 26, 32)
(C) Limitation of Actions – Action against public authorities must be initiated within 36 months following the cessation of the injury, and the plaintiff's claims were time-barred. (Paras 36, 42)
(D) Res Judicata – The principle applied, as prior claims regarding the same issues had been previously decided in other proceedings which included the defendant’s entry with permission having been established. (Paras 48, 62, 64) (E)
Findings of Court: The court found that the defendant's actions were within statutory limits, and the plaintiff's claims untenable, warranting the striking out of the matter. (Paras 90-100) (F)
Result: Defendant’s application to strike out the plaintiff’s claim allowed with costs.
JUDGMENT
Introduction
[1] This is an application by the defendant to strike out the claim of the plaintiff under O 18 r 19(1) of the Rules of 2012. At the conclusion of the hearing which was conducted by way of remote communication technology via zoom, I allowed the application and set out the main grounds for the same. This judgment contains the full reasons for the decision.
Key Background Facts
[2] This suit is instituted by the plaintiff in his capacity as the administrator and sole beneficiary to the estate of Lo Pang @ Fun Lim ("the Deceased"). The plaintiff's cause of action against the defendant is for trespass over land under Geran Mukim 104, Lot 1009, Mukim Ampang, Daerah Kuala Lumpur Wilayah Persekutuan ("the Land"). The Deceased was the registered proprietor of the Land. The defendant - Datuk Bandar Kuala Lumpur is the Commissioner of the City of Kuala Lumpur, a corporation sole established under the Federal Capital Act 1960 , and administers the municipal affairs of the city of Kuala Lumpur.
[3] The case of the plaintiff was that the defendant was trespassing and in unauthorized use of the Land prior to 13 February 208 until 8 October 2017, which ceased when possession of the Land was taken lawfully by the land administrator of Wilayah Persekutuan Kuala Lumpur pursuant to a land acquisition exercise for the construction of the Setiawangsa - Pantai Expressway Highway ("SPE").
[4] The trespass, according to the plaintiff, originated from the defendant's unauthorized use of the Land whereby part of Jalan Desa Pandan, a pedestrian walkway and a landscaped area ("Jalan Desa Pandan") had encroached onto the Land. Subsequently, the defendant in 2008 undertaken further encroachment when the defendant started work on the Jalan Ampang/Jalan Jelatek elevated intersection ("Ampang Elevated Intersection").
[5] The crux of the complaint was that the defendant had constructed "Jalan Desa Pandan" without the consent of the registered proprietor or his representatives. Therefore, any encroachment on the Land by the construction of "Jalan Desa Pandan" and for the work undertaken for the Ampang Elevated Intersection was an act of trespass, which the plaintiff now is claiming damages pursuant to this suit. The Land was thereafter acquired pursuant to the SPE acquisition by the land administrator upon the service of the notice of award and offer of compensation in Form H on 9 October 2017.
The Law On Striking Out - A Summary
[6] The starting point of reference must be O 18 r 19(1) of the RC 2012 which relevant provisions read as follows:
"19. Striking out pleadings and endorsements (O 18 r 19)
(1) The Court may at any stage of the proceedings order to be struck 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 subparagraph (1) (a)...."
[7] The defendant premised its applications on limbs (a), (b) and (d). Thus it was stated that the claim by the plaintiff disclosed no reasonable cause of action, was frivolous, vexatious and otherwise tantamount to an abuse of Court process.
[8] The leading authority on O 18 r 19(1) is the Supreme Court decision in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd , , and in particular, the following part of the judgment of Mohamed Dzaiddin SCJ (later Chief Justice):
"The principles upon which the Court acts in exercising its power under any of the four limbs of O 18 r 19(1) Rules of the High are well settled. It is only in plain and obvious cases that recourse shoul
