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2021 MarsdenLR 2626
HIGH COURT SABAH & SARAWAK LABUAN
DPML CORPORATION BHD & ANOR – Appellant
Versus
LEMBAGA PELABUHAN BINTULU & ORS – Respondent
[Suit No: LBN-22NCvC-2/3/2020]
The doctrine of legitimate expectation is not applicable in private law claims; claims must disclose a reasonable cause of action to avoid being struck out.
Headnote:(A) Rules of Court 2012 – Order 18, Rule 19(1)(a) and (b); Bintulu Port Authority Act, 1981 – Section 66A – Application for striking out pleadings – The court may exercise its discretion to strike out a pleading that discloses no reasonable cause of action or is plainly unsustainable – The Plaintiffs claimed that the 2nd Defendant was incorporated illegally, but the court found this assertion unsustainable – The doctrine of legitimate expectation is inapplicable in private law claims – The Plaintiffs' claims were struck out against the 1st and 2nd Defendants due to the lack of a sustainable cause of action. (Paras 3, 31, 58)
Facts of the case: The Plaintiffs alleged that the 2nd Defendant was incorporated unlawfully by the 1st Defendant and relied on misrepresentations regarding their tenancy and lease expectations. (Paras 22-22)
Findings of Court: The Plaintiffs' claims lacked a sustainable legal basis, and the doctrine of legitimate expectation does not apply in private law cases. (Paras 60, 58)
Issues: Whether the Plaintiffs had a legitimate expectation for a long-term lease and if claims against the Defendants were sustainable in private law. (Paras 58-59)
Ratio Decidendi: The court ruled that the assertions regarding the 2nd Defendant's incorporation were unsustainable, and the legitimate expectation doctrine is strictly applicable to public law matters, not private law. (Paras 58-59)
Result: The Plaintiffs' action was struck out against the 1st and 2nd Defendants.
JUDGMENT
The Application
[1] By this Notice of Application filed on 12 January 2021 (Encl 41), the 1st and 2nd Defendants are applying under O 18, r 19(1)(a) or (b) and/or (d) of the Rules of 2012 and under the inherent jurisdiction of the Court to strike out the Plaintiffs' action herein as against the 1st and 2nd Defendants by the Writ and Statement of Claim herein dated 9 March 2020.
[2] Alternatively, the 1st and 3rd Defendants seek to strike out paragraphs a(i), a(ii), a(iii) of the Writ of Summons herein and paras 31.01, 31.02, 31.03, 32, 33, 34, 35, 36, 37, 38, 39, 40, 48, 49, 50, 50(a), 50(b), 50(c), 51, 52, 53, 54, 55, 56, 57, 58, 59.01, 59.02, and 59.03 of the Statement of Claim herein.
The Principles Of Law Applicable In An Application To Strike Out Pleadings
[3] There is no controversy that the discretionary power to strike out a Statement of Claim and dismiss the Plaintiff's claim in the action summarily under O 18 r 19 (1) of Rules of , 2012 and under the inherent jurisdiction of the Court should only be exercised in plain and obvious cases when the claim is not sustainable. See: Tractors (M) Bhd v. Tio Chee Hing, ; Bandar Builder Sdn Bhd v. United Malayan Banking Corporation Bhd; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969; Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795, Sivakumar Varatharaju Naidu v. Ganesan Retanam; [2011] 6 MLJ 70; [2010] 9 CLJ 825 and Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v. Karambunai Resorts Sdn Bhd, [1996] 1 MLJ 309.
[4] However, whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but on whether the case is argued and/or on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. See: McKay & Anor v. Essex Area Health Authority & Anor [1982] 2 All ER 771; Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v. Karambunai Resorts Sdn Bhd, [1996] 1 MLJ 309 at p 320; and Syarikat Bekalan Air Selangor Sdn Bhd v. Kerajaan Negeri Selangor; [2014] 4 MLJ 147 at p 153.
[5] A defendant has the right to be relieved of having to meet a claim which discloses no reasonable cause of action and if he can succeed in showing that a claim must fail, he is entitled to be so relieved by having the claim struck out. The striking out or dismissal of the action or even the stay thereof may "often be required by the very essence of justice to be done" (see Metropolitan Bank Ltd v. Pooley [1885] 10 App Cas 210 (HL) at p 221), and this is normally done in order to prevent the parties from being harassed and put to considerable expense by frivolous, vexatious or hopeless litigation. See Riches v. DPP [1973] 2 All ER 935 at p 942.
[6] When the case involved merely determination of pure question of law when there is no dispute on the underlying material facts or when the question of law can be determined in isolation from the contested issues of facts or when the question of law is not intertwined with the facts in dispute, the case may be deposed off in an application under O 18 r 19 (1) of the Rules of 2012. See: Ong Lean Sim & Anor v. Tio Kah Hin & ors, [1985] 1 MLJ 270; Hill v. Chief Constable Of West Yorkshire [1989] AC 53 and Elguzouli-Daf v. Commissioner Of Police Of The Metropolis And Another [1995] QB 335.
[7] When the application is made under O 18 r 19(1)(a) of the Rules of 2012, no affidavit evidence is admissible. The Court will on assumption that all the facts pleaded in the Statement of Claim were established and true, determine whether it give rise to a cause of action known in law or obviously unsustainable. See: Malaysian Civil Procedure Volume 1 - 2018 Edition, para 18/19/1 - subparagraph (a).
[8] However, the affidavit evidence is admissible when considering the application under other grounds, which are under O 18 r 19(1)(b) and (d) and under the inherent jurisdiction of the Court. See: Malays
