The cause of action accrues at the time of breach, and actions must be filed within six years; otherwise, they may be struck out as time-barred.

JUDGMENT

Khairil Azmi Mohammad Hasbie JC:

Introduction

[1] This is the Defendant's application (encl 18) under O 18 Rule (19) (b) and (d) of the Rules of 2012 to strike out the Plaintiff's Writ and Statement of Claim dated on the 5th of October 2018.

[2] The Plaintiff's claim against the Defendant is basically for the refund of a deposit (Deposit) in the sum of RM 2,256,408.00, duly paid by the Plaintiff to the Defendant in pursuant to a Letter of Offer dated 23rd of December 2009, in which, the Defendant offered the Plaintiff the purchase of a parcel of land located at Selangor Science Park 2, Sepang (hereinafter referred to as the said Property).

Cause Papers

[3] The relevant cause papers pertaining to an application in encl 18 are as follows:

a) Defendant's Notice of Application dated on the 23rd of May 2019 to strike out the Plaintiff's Writ and Statement of Claim dated on the 5th of October 2018 (Enclosure 18);

b) Defendant's Affidavit in Support affirmed on the 23rd of May 2019 (Enclosure 29);

c) Plaintiff's Affidavit in Reply affirmed on the 13th of June 2019 (Enclosure 22);

d) Defendant's Affidavit in Reply affirmed on the 28th of June 2019 (Enclosure 27); and

Legal Principles.

[4] The relevant provision to be discussed in this judgment is O 18 of the Rules of :

Striking out pleadings and endorsements O 18 r 19

(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 he Court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under subparagraph (1)(a).

[5] The principles of striking out of pleadings have been illustrated in the Supreme Court case of Bandar Builder Sdn Bhd & Ors v. United 5 Malayan Banking Corporation Bhd, 1993 MarsdenLR 99 wherein the Abdul Hamid Omar LP, Eusoff Chin and Mohamed Dzaiddin SCJJ held that:-

(1) The principles upon which the Court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the Rules of the High 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it 'obviously unsustainable'. 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.

(2) Both the counterclaim and the defence to the counterclaim have raised some issues which required serious consideration. This was not a plain and obvious case for striking out the pleadings as disclosing no reasonable cause of action and defence. So long as the pleadings disclosed some cause of action or raised some question fit to be decided by the judge, the mere fact that the case was weak and not likely to succeed at the trial was no ground for the pleadings to be struck out. It cannot be said that they were frivolous, vexatious or may prejudice, embarrass or delay the fair trial of the action or that these pleadings were otherwise an abuse of the process of the Court. "

[6] Another Court of Appeal decision in the case of Sivakumar Varatharaju Naidu v. Ganeson Retanam , 2010 MarsdenLR 2973 (TAB-7) where Abdul 5 Malik Ishak JCA held that:

"the summary procedure under O 18 r 19 should only be resorted to when it is conspicuously clear that the Plaintiff's claim, on the face of it, is obviously unsustainable. The Court will always strike out a claim in plain and obvious cases and where the claim in obviously unsustainable. The power to strike out must be e