Back
2022 MarsdenLR 1772
HIGH COURT MALAYA KUALA LUMPUR
TAN KOK PIN – Appellant
Versus
LOH CHUN HOO & ORS – Respondent
[Civil Suit No: WA-22NCvC-100/02/2021]
A claim can be struck out if it discloses no reasonable cause of action, is frivolous, and lacks sufficient particulars for the alleged torts.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Application to strike out claim for disclosing no reasonable cause of action – Claim for conspiracy to injure, slander, extortion, and data breach struck out due to lack of particulars and failure to establish legal standing under applicable laws. (Paras 70-74)
Facts of the case:
The Plaintiff filed a suit alleging damages for multiple torts against D2, who sought to strike out the claim arguing it was frivolous and vexatious as it disclosed no reasonable cause of action.
Findings of Court:
The Plaintiff's claim was found lacking requisite legal grounds with no material facts established to support allegations against D2.
Issues
: Whether the Plaintiff's claim under various torts had sufficient standing and particulars to proceed.
Ratio Decidendi:
The court held that failure to disclose a reasonable cause of action warrants striking out the claim as it represents an abuse of process.
Result:
The claim against D2 was struck out with costs.
JUDGMENT
[2nd Defendant's Application Pursuant To Order 18 Rule 19(1) Of The Rules Of 2012 - Enclosure 58]
Introduction
[1] The 2nd Defendant ("D2") filed an application ("the Application") pursuant to O 18 r 19(1) of the Rules of 2012 (" ROC 2012") to strike out the Plaintiff's writ and statement of claim dated 22 February 2021 and 19 March 2021 respectively ("the Suit"). Having read all the submissions by the Parties, I hereby allow the Application. Herein are the judgment.
Facts Of The Case
[2] D2 subscribed and/or invested monies in the Click Subscription Plan. Click Subscription Plan was offered by the Plaintiff's company known as Click Internet Traffic Sdn Bhd ("Click") through an online application where certain returns on investment were offered to investors.
[3] After a period of time, the Plaintiff alleged that the Click application had been hacked. Based on that reason, the Plaintiff stopped paying subscribers their returns on investments. D2 demanded for the refund of his capital investments and for his down lines. The Plaintiff had refused and/or failed to do so. D2 and the other Defendants then lodged police reports against the Plaintiff for cheating and for masterminding a money game. The Plaintiff refuted the same and said that the allegations in the police reports are not true.
[4] As a result of the police reports, the Plaintiff was detained by the police ("PDRM") to assist in their investigation. While the Plaintiff was detained, the 15th Defendant (an unknown Chinese male) ("D15") allegedly approached the Plaintiff's sister ("Ann"). Ann was asked to contact the first Defendant who is D2's solicitor ("D1") on the refund of the investments to avoid indefinite incarceration.
[5] D2 had instructed D1, his lawyer, to negotiate on a without prejudice basis on the refund of the investments. On D2's instructions, D1 met Ann and the Plaintiff's lawyer to negotiate a settlement. There were also another series of negotiation via telephone between D1 and the Plaintiff's solicitor. However, the negotiation failed.
[6] Therefore, the Plaintiff filed the Suit against D2 inter alia for general, aggravated or exemplary damages against D2 as global sum on the tort of conspired to Injury, slander, breach of personal data and extortion on the Plaintiff.
[7] D2 then filed the Application to strike out the Plaintiff's claim against him as well as a few paragraphs in the statement of claim ("the Offending Paragraphs").
Submission By D2
[8] D2 submitted that there were material averments that were never challenged nor rebutted by the Plaintiff. The averments are as follows:
(a) D2 asserted that the facts pleaded in those Offending Paragraphs are arising out of "without prejudice" settlement negotiations, meetings and communication between D2's solicitor, namely, D1 and Ann and/or Click's legal retainer referred to as Chris;
(b) The said "without prejudice" communication was with a view to settle the disputes between D2 and the Plaintiff, Click and Gideon Lim amicably;
(c) The negotiations failed; and
(d) D2 has not waived the "without prejudice" privilege.
[9] D2 further submitted that where one party makes a positive assertion in affidavits on a material issue, the failure to contradict the assertion is deemed as an admission to the asserted facts.
[10] Next, D2 submitted that the Offending Paragraphs pleading the facts arising out of the "without prejudice" communication must be struck off. The Plaintiff's case against D2 rests principally on the "without prejudice" communication and D2 further argued that the Offending Paragraphs here falls within the ambit of "without prejudice" communications. Since the "without prejudice" communication was a privilege which has never been waived by D2 and the negotiation failed, the Plaintiff's claim against D2 is doomed to failure as "without prejudice" communication in such situation is not admissible in evidence. Therefore, the Offending Paragraphs are plainly and obv
