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2021 MarsdenLR 361
HIGH COURT SABAH & SARAWAK KOTA KINABALU
SHAH ARCHITECT & ANOR – Appellant
Versus
BINA PURI CONSTRUCTION SDN BHD & ORS – Respondent
[Suit No: BKI-22NCVC-37-6-2020]
A claim to strike out a Defence is only warranted when it is obvious and unsustainable; otherwise, issues of fact must be resolved at trial.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Application to strike out Defence – Plaintiffs sought to strike out the Defence of the Defendants asserting it was without reasonable cause – The Court evaluated the Defendants' responses and previous court orders regarding similar claims – While the claim for breach of contract holds, the negligent misrepresentation requires further inquiry at trial – Thus, the application to strike out is dismissed. (Paras 1-58)
Facts of the case: The Plaintiffs commenced action against the Defendants for breach of contract and misrepresentation, seeking various injunctions and damages due to outstanding encumbrances affecting a property they wished to settle within a specified timeframe. (Para 5)
Findings of Court: The Plaintiffs' application to strike out the Defendants' Defence was not sufficiently substantiated; the Defendants raised triable issues, particularly concerning claims of misrepresentation, which warrant evaluation during trial proceedings. (Paras 54-58)
Issues: The main issues addressed include the sustainability of the Defendants' Defence in light of prior summary judgments and the capacity for triable issues regarding misrepresentation. (Para 20)
Ratio Decidendi: The Court concluded that a mere assertion of weak defence does not suffice for a strike-out unless it is glaringly unsustainable; issues involving fraud must be appropriately examined in a trial context as adverse inferences should not be made solely on technical grounds. (Paras 55-57)
Result: Application to strike out Defence dismissed with costs in the cause.
JUDGEMENT
[1] This is the decision on enclosure 80 in respect of the 1st, 3rd, 4th and 5th Defendants. enclosure 80 is an application by the 1st and 2nd Plaintiffs (the Plaintiffs) to strike out the Defence of the 1st - 5th Defendants under O 18 r 19 ROC 2012. The orders sought by the Plaintiffs are as follows:
(i) The whole of the Defence of the 1st, 2nd, 3rd, 4th and 5th Defendants be struck out;
(ii) Damages of RM 822,598.19 payable by the 1st, 2nd, 3rd and 4th Defendants jointly or severally to the 2nd Plaintiff within fourteen (14) days from the date of the Order;
(iii) Liquidated damages and costs of RM 14,500.00 payable by the 1st, 2nd, 3rd and 4th Defendants jointly or severally to the 2nd Plaintiff within fourteen (14) days from the date of the Order;
(iv) Costs of this Application;
(v) 5% Statutory interest per annum from the date of the Order until the date of payment based on the damages awarded under prayer (ii) or (iii) above; and
(vi) Other reliefs which this Honourable Court deems fit and proper.
[2] The grounds of this application are as follows:
a. There is no reasonable defence in the Defendants' case; and / or
b. The Defendants' defence are scandalous, frivolous and or vexatious towards the Plaintiffs' claims
[3] The 1st, 3rd, 4th and 5th Defendants filed their Affidavit in Opposition (enclosure 84). Both parties have filed their respective submissions except for the 2nd Defendant. The decision on enclosure 80 is fixed on 19 November 2021. On 3 November 2021, the 2nd Defendant filed a notice of application (enclosure 98) to apply for, inter alia, an extension of time to file and serve an Affidavit in Opposition.
[4] There was no objection from the Plaintiffs' counsel to the 2nd Defendant's application except for the date of decision for enclosure 80 fixed on 19 November 2021 to be maintained. As the 2nd Defendant had filed a separate Defence and is represented by different advocates, this Court allowed the 2nd Defendant's application and the decision on enclosure 80 in respect of the 2nd Defendant is fixed on 16 February 2022.
Brief Factual Background
[5] On 12 June 2020, the Plaintiffs commenced the writ action against the Defendants for breach of contract and misrepresentation and have prayed for the following reliefs in their Amended Statement of Claim (at para 14) (enclosureosure 17):
i. A Mandatory Injunction requiring the 1st, 2nd, 3rd and 4th Defendants jointly or severally do fully settle all the said Redemption Sums owed to Malayan Banking Berhad in respect of the Lots 2, 3, 4 and 5 Property and do fulfill any necessary procedural documentation required for the settlement of the said Redemption Sums within fourteen (14) days from the date of Judgment.
ii. A Mandatory Injunction requiring the 1st, 2nd, 3rd and 4th Defendants do give consent to the 2nd Plaintiff to sell the Lots 2, 3, 4, and 5 Property to any purchasers within seven (7) days upon settling all the said Redemption Sums owed to Malayan Banking Berhad.
iii. Grant of Damages to be assessed for the 1st and 2nd Plaintiffs payable by the 1st, 2nd, 3rd, 4th and 5th Defendants jointly or severally for all losses resulted from the breaching of the First S&Ps, non-completion of the Sub-Sale Agreements, and breaching of the said Settlement Agreement, including but not limited to the said outstanding professional fees in the sum of RM 1,077,980.40.
iv. Repayment of the said DBKK's assessment sum of RM 6926.60 by the 1st and 2nd Defendants jointly or severally to the 2nd Plaintiff within seven (7) days from the date of Judgment.
v. Legal costs to be assessed;
vi. 5% Statutory Interests per annum from the date of Judgment until the date of Settlement based on the damages sum awarded under relief items (iii) or (iv) above.
vii. 5% Discretionary Interest per annum from the date of this Summon until the date of Judgment based on the damages sum awarded under relief items (iii) or (iv) above.
viii. Other reliefs which this Honorable Court deems fit and
