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2021 MarsdenLR 1690
HIGH COURT MALAYA JOHOR BAHRU
MOHD SHAFIEE HASHIM – Appellant
Versus
GNASEGARAN K RANGASAMY KRISHNAN & ORS – Respondent
[Civil Suit No: JA-22NCVC-61-05-2020]
The court emphasized that procedural errors should not obstruct claims if substantive justice can still be achieved.
Headnote:(A) Order 18 r 19(1) of the Rules of 2012 – Application to strike out pleadings – The Plaintiff sought to include additional defendants alleging collusion in fraud – The Court reiterated that striking out is reserved for cases that are plainly unsustainable – Technical defects in the application are not fatal if justice is served. (Paras 6-8, 12-13, 22-23)
Facts of the case: The Plaintiff was the child and administrator of an estate, alleging that the solicitor failed to distribute the estate's proceeds from a land sale. The application to amend was permitted, adding claims of collusion against additional defendants.
Findings of Court: It was found that all parties’ interests could still be addressed, and the Plaintiff's ability to claim was essential.
Issues: The main issue was whether the application for amendment was flawed or merely technical.
Ratio Decidendi: The court concluded that procedural missteps do not hinder substantive justice when the merits of the case are sound.
Result: Application to strike out was dismissed with costs.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Second to Eighth Defendants in encl 23 to strike out the Plaintiff's amended Writ of Summons and Statement of Claim under O 18 r 19(1) of the Rules of 2012 ("Rules of ").
The Background Facts
[2] The Plaintiff was the biological child and administrator of the estate of one Khadijah binti Salimon ("Khadijah"), whilst one Gamar binti Mochamad Abdat was the representative of the estate of one Sheikh Ali bin Abdullah ("Sheikh Ali"). Both Khadijah and Sheikh Ali were directors of Kumpulan Johor Timur Sdn Bhd ("the Company"). The Company owned a piece of land ("the Land").
[3] The 1st Defendant who was the solicitor for the Plaintiff, had agreed to manage the sale of the Land, and acted as the common solicitor on behalf of both Khadijah and Sheikh Ali as the vendors, and one KM Moh Sdn Bhd as the purchaser. Pursuant to a sale and purchase agreement dated 1 December 2013, the Land was sold for MYR3.5 million. Instead of distributing half of the proceeds of the sale amounting to MYR1.75 million to the estate of Khadijah, the Plaintiff averred that the 1st Defendant had, as of September 2014, distributed only MYR315,000 to her.
[4] As a result thereof, on 12 May 2020, the Plaintiff filed a claim against the First Defendant for, inter alia, negligence and fraud. Based on evidence discovered subsequently, the Plaintiff, on 17 August 2020, filed an application in encl 11 to amend the Writ of Summons and Statement of Claim ("the application to amend") to add the Second to Eighth Defendants ("the Defendants"), claiming that they had colluded with the First Defendant to perpetrate fraud and misrepresentation. The application to amend was allowed on 23 September 2020.
[5] On 26 November 2020, the Defendants filed this Application, which was dismissed for the following reasons.
The Applicable Law
[6] In an application to strike out pleadings, the starting point of reference was O 18 r 19(1) of the Rules of , which reads as follows:
Order 18 - Pleadings
Rule 19. Striking out pleadings and endorsements
(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.
[7] The law on striking out is trite and has been encapsulated by the Supreme Court in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, , where it was distilled by Mohamed Dzaiddin SCJ (as he then was) in the following words:
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 should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L & NW Ry Co [1892] 3 Ch 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 Rules of the High ) (Hubbuck v. Wilkinson) (supra). The Court must b
