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2021 MarsdenLR 2493
HIGH COURT MALAYA ALOR SETAR
KHAIRUL MOHD NORDIN – Appellant
Versus
PUBLIC BANK BERHAD – Respondent
[Suit No: KA-22NCVC-69-09/2019]
A bankrupt party requires sanction from the Director General of Insolvency to maintain a legal action, and claims without reasonable cause are subject to being struck out.
Headnote:(A) Insolvency Act 1967 – Section 38(1)(a) – Rules of Court 2012 – Order 18 Rule 19(1)(a), (b) and (d) – Appeal by Plaintiff against striking out application by Defendant due to alleged incompetence resulting from bankruptcy, non-existent defendants, lack of duty of care, and expiration of limitation period. (Paras 1, 2, 4, 16, 17)
(B) Claim of negligence failed as Defendant's police report was justified and there was no nexus to Plaintiff's alleged damages, which fell within authorities' purview. (Paras 33, 34, 45)
(C) Principle of res judicata upheld barring relitigation of matters previously adjudicated, establishing that Plaintiff's claim is frivolous and an abuse of process. (Paras 52, 61)
Facts of the case: Plaintiff, a former employee of Defendant, was accused of fraud, leading to criminal proceedings. Court proceedings sought to strike out Plaintiff's claims based on multiple grounds, including bankruptcy. (Paras 4, 16, 26)
Findings of Court: Plaintiff's claims were found to disclose no reasonable cause of action and were ordered to be struck out. (Paras 60, 62)
Issues: Competence of Plaintiff to maintain action post-bankruptcy, naming of Defendants, validity of claims based on tort and procedural defects. (Paras 16, 17, 25)
Ratio Decidendi: Court concluded no reasonable cause of action was presented by Plaintiff; striking out under ROC justified given the circumstances and legal precedents. (Paras 50, 62)
Result: Plaintiff's action was struck out, and Defendant's application allowed with costs awarded. (Paras 62)
JUDGMENT
Introduction
[1] This is an appeal filed by the Plaintiff against the decision of this Court in allowing the striking out application filed by the Defendant as documented under encl 11. In the Enclosure, the Defendant sought to strike out the Writ and the Statement of Claim pursuant to O 18 r 19(1)(a) and/or (b) and/or (d) of the Rules of 2012 ("ROC 2012").
[2] Having considered the Defendant's application and the submission of the Plaintiff and the Defendant, this Court had allowed the Defendant's striking out application under O 18 r 19(1)(a) and/or (b) and/or (d) of ROC 2012. The followings are the Grounds of Decision of this Court.
Background Facts
[3]Vide Enclosure 11, the Defendant prayed for the following orders:
1. That the Statement of Claim filed by the Plaintiff be struck out and the Plaintiff's claim against the Defendants be dismissed;
2. That the costs of this application and this action be paid forthwith by the Plaintiff to Public Bank Berhad on a full indemnity basis; and
3. Any further relief this Honorable Court deems fit and fair.
[4] The grounds of the Defendant's application are based on the followings:
(a) The Plaintiff is incompetent to maintain this action against the Defendants as the Plaintiff is an undischarged bankrupt, and he does not have the sanction of the Director General of Insolvency when this action was instituted;
(b) The Plaintiff has named non-existent entities as defendants in this suit;
(c) The Defendants owe no duty of care to the Plaintiff in respect of the police investigation and/or the criminal proceedings filed by the prosecution against the Plaintiff. There is no nexus between the Plaintiff's alleged losses and/or injuries and/or hardship and/or damages and the action taken by the Defendants;
(d) The Defendant has a real basis and/or reasonable and proper cause to lodge a police report against the Plaintiff;
(e) The Plaintiff claim herein is bound to fail due to the doctrine of res judicata and/or issue estoppel;
(f) The Plaintiff is estopped by his own conduct and/or admissions/confessions from maintaining this claim;
(g) The Plaintiff's claim is barred by limitation and/or doctrine of laches and/or acquiescence; and
(h) The Statement of Claim discloses no reasonable cause of action against the Defendants, and/or is scandalous, frivolous or vexatious, and/or is an abuse of the process of the Court which warrants the striking out of the Statement of Claim.
[5] For ease of reference, the cause papers that had been filed by the parties in this proceeding are as follows:
(a) The Writ of Summons dated 11 September 2019 (Enclosure 1);
(b) The Statement of Claim dated 30 January 2019 (Enclosure 2);
(c) The Defence dated 30 December 2019 (Enclosure 8);
(d) The Defendant's Notice of Application of the Striking Out dated 10 January 2020 (Enclosure 11);
(e) The Defendant's Affidavit in Support of the Striking Out Application affirmed by Ng Cheong San on 10 January 2020 (Enclosure 12);
(f) The Reply to the Defence dated 14 January 2020 (Enclosure 13);
(g) The Plaintiff's Affidavit in Reply in opposition to the Defendant's Striking Out Application affirmed by Khairul bin Mohd Nordin on 7 February 2020 (Enclosure 15); and
(h) The Defendant's Affidavit in Reply in support of the Defendant's Striking Out Application affirmed by Ng Cheong San on 12 March 2020 (Enclosure 18).
[6] As submitted by the Defendant which was not deniable by the Plaintiff, the Plaintiff was a former employee of the Defendant, having started his employment with the Defendant in 1996. At the material time, he held the position as an Executive in the Defendant's Credit Control Department and was stationed at the Defendant's branch in 45 & 46 Jalan Putra, Taman Tanjung Peteri, 09300 Kuala Ketil, Kedah Darul Aman ("Kuala Ketil Branch"), until he tendered his resignation with the Defendant on 24 October 2012 and approved by the Defendant on 25 October 2012 [refer para 5 of encl 15].
[7] In October 2012, following an a
