The court ruled that striking out applications should only be granted in clear cases, allowing ZCSB and TSZ's Counterclaim to proceed to trial due to disclosed triable issues.

JUDGMENT

(Enclosures 52, 61 And 63)

Atan Mustaffa Yussof Ahmad J:

[1] Enclosures 52, 61 and 63 are dismissed with costs. My broad grounds follow.

Enclosure 52

[2] In their Counterclaim, the Plaintiffs in the Counterclaim (respectively, "ZCSB" and "TSZ' alleged that there was a "mutual understanding" between the parties that the 2nd Defendant in the Counterclaim ("Taqiuddin") would undertake to make all payments relating to the:

a) Put Option and Call Agreement dated 28 October 2021 ("First Agreement')

b) Put Option and Call Agreement dated 19 January 2022 ("Second Agreement'); and

c) Supplemental Put Option and Call Agreement dated 3 August 2022 ("Supplemental Agreement').

(collectively referred to as "the Agreements").

[3] ZCSB and TSZ also allege that the 1st Defendant in the Counterclaim ("KB"), "Taquiddin" and the 2nd Defendant in the Counterclaim ("Ismitz") had colluded and conspired to injure ZCSB and TSZ. ZCSB and TSZ sought various declarations and damages against the Defendants in Counterclaim on these grounds.

[4] Taqiuddin filed this application to strike out the Counterclaim essentially on the grounds that the Counterclaim discloses no reasonable cause of action and is obviously unsustainable, scandalous, frivolous or vexatious. ZCSB and TSZ oppose the application.

[5] I have considered the submissions of the parties and the documents exhibited. At the outset, I note that one of Taqiuddin's key arguments for striking out the Counterclaim was that the material issues raised therein, namely the alleged "mutual understanding" and "conspiracy", had already been decided by this court in KIB's application for summary judgment against ZCSB and TSZ in the main action. However, the court of Appeal has since allowed ZCSB and TSZ's appeal against the summary judgment order. Therefore, Taqiuddin's submission that the Counterclaim is barred by res judicata can no longer apply.

[6] The main issue to be decided is whether ZCSB and TSZ have disclosed a reasonable cause of action against Taqiuddin which is not obviously unsustainable. The principles governing O 18 r 19 applications are well established. The power to strike out should only be exercised in plain and obvious cases where the claim is obviously unsustainable (Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, [1993] 3 MLJ 36). If the facts and issues raised require a critical examination which should be determined at trial, the matter is not appropriate to be struck out summarily (Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors; [2012] 1 MLJ 473; [2012] 1 CLJ 75).

[7] Having scrutinised the Counterclaim, I am of the view that ZCSB and TSZ have disclosed triable issues which warrant ventilation at trial. While the Agreements and TSZ's Personal Guarantee dated 19 January 2022 were signed between KIB, ZCSB and TSZ, ZCSB and TSZ have pleaded that there was a mutual understanding between the parties including Taqiuddin which varied the payment obligations in the Agreements, such that Taqiuddin had undertaken to make all the payments to KIB pursuant to the Agreements. ZCSB and TSZ exhibited evidence of several payments made to KIB via cheques arranged by Taqiuddin pursuant to the Agreements. These factual assertions should be allowed to be tested in a full trial.

[8] It is settled law that parties are not prevented from proving that they entered into an oral agreement regarding a matter not covered by the written contract (Lindley v. Lacey 144 ER 232). As rightly submitted by ZCSB and TSZ, the purported oral variation via the alleged mutual understanding is an issue that requires mature consideration at trial through viva voce evidence. At this interlocutory stage, it suffices that ZCSB and TSZ have produced documentary evidence of payments made by Taqiuddin to support their case on the alleged mutual understanding.

[9] I am also not persuaded by Taqiuddin's submission that the allegation of conspiracy is devoid of particulars and unsustainable. Upon examining par