Back
2020 MarsdenLR 2692
HIGH COURT MALAYA IPOH
SRI ASTAKA SDN BHD – Appellant
Versus
CHONG LE CHIN – Respondent
[Civil Suit No: AA-22NCVC-15-02-2019]
The striking out of claims under procedural rules requires a reasonable cause of action to exist, which must be determined by evidence rather than assumed against the plaintiff.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Striking out application – Plaintiff claims ownership over lands based on a joint venture agreement – Allegations of fraud and forgery in property transfer by deceased owners – Court held that pleadings disclose a reasonable cause of action and are not scandalous or frivolous – Revocation of power of attorney must be proved by evidence – Application to strike out dismissed with costs. (Paras 29, 30)
(B)
Plaintiff pleaded the validity of power of attorney and potential ratification based on established legal principles. (Paras 20, 21)
Facts of the case:
Plaintiff alleges fraudulent transfer of land by deceased owners to the Defendant, despite having entered into a joint venture agreement for its development.
Findings of Court:
Plaintiff has a reasonable cause of action and the striking out application is dismissed.
Issues
: Whether Plaintiff has locus standi in light of alleged revocation of power of attorney.
Ratio Decidendi:
The Court concluded that the validity of the power of attorney and potential ratification must be determined through evidence rather than striking out the claim based on procedural grounds.
Result:
The striking out application is dismissed.
[1] By encl 7, the Defendant seeks to have the action struck out pursuant to O 18 r 19 (1) (a) or in the alternative, O 18 r 19 (1) (b), (c) or (d) ROC 2012 and the Court's inherent jurisdiction ("SO Application").
The Action
[2] The dispute is over lands held under Geran No. 60456 Lot 1747, Geran 60457 Lot 1748 and Geran No 60458 Lot 1749 all in Mukim Sungai Terap ("the said Lands").
[3] The said Lands were originally registered under the names of Thanapakiam Subrayah ("Thanapakiam") and Soundarvali Rajoo ("Soundarvali");
[4] By action commenced by Writ dated 22 February 2019 and by a Statement of Claim filed on 14 March 2019, the Plaintiff claims that the Defendant came to be registered as the proprietor of the said Lands on 10 March 2006 through fraud and or forgery.
[5] The reliefs prayed for are inter alia for the transfer of the said Lands to the Defendant made pursuant to Presentation No. 61338/2014 be set aside and struck out, for vacant possession, for damages with interest thereon and costs.
[6] In claiming the reliefs sought, the Plaintiff pleaded that it entered into a joint venture agreement dated 3 September 1995 ("JVA") with one G Ramoo Govindarajoo ( "Ramoo") in his capacity as the attorney of Thanapakiam and Soundarvali.
[7] Ramoo was the attorney appointed by the original registered proprietors under two separate deeds of irrevocable power of Attorney, one from Thanapakiam and the other from Soundarvali both dated 6 August 1994.
[8] Under the said JVA the Plaintiff was to develop the said Lands into a housing estate.
[9] The Plaintiff pleaded it had thus far paid a total of RM303,000.00 to Ramoo who had in turn given an irrevocable power of attorney to the Plaintiff to deal with the said Lands.
[10] The Plaintiff had caused to be prepared a layout plan for the sub-division of the said Lands into smaller lots and had taken steps to have private caveats on the said Lands removed.
[11] Sometime in 2014 to 2015, in the course of seeking to effect transfers of the said Lands, the Plaintiff was informed by its solicitors that the said Lands have been transferred to the Defendant in reliance upon an instrument of transfer said to be signed by both Thanakiam and Soundarvali at a time when they had already died and this led to the action herein for the reliefs sought.
The Relevant Cause Papers
[12] In dealing with the SO Application, the Defendant filed a fresh set of written submissions which was tendered to the Court and the Plaintiff during the hearing on 10 September 2020. Earlier he had filed two sets of written submissions in Encls 10 and 12.
[13] Reference was made by the Plaintiff to the following cause papers:
13.1 The Plaintiff's "Writ Saman" (Encl 1) and Pernyataan Tuntutan (Encl 2);
13.2 The Defendant's "Notis Permohonan" (Encl 7);
13.3 The Defendant's "Afidavit Sokongan" (Encl 6);
13.4 The Plaintiff's "Afidavit Jawapan" (Enel 8);
13.5 The Defendant's "Afidavit Balasan" (Enel 9);
13.6 The Plaintiff's "Afidavit Tambahan" (Enel 13 to the extent as allowed by the Court's Order dated 13 March 2020 wherein certain paragraphs were expunged); and
13.7 The Defendant's "Afidavit Balasan" 2 (Enel 24).
[14] The Plaintiff filed one set of written submissions (Enclosure 18).
Application Under O 18 r 19 (1) (a) - Non Filing Of Defence
[15] Both the Plaintiff and the Defendant had earlier agreed that the Defendant need not file his defence until the SO Application is disposed off. This is because if the SO Application is allowed, the action would be struck out.
[16] With no defence having been filed and in the face of a striking out application premised upon O 18 r 19 (1) (a) ROC 2012, the Court has to proceed on the premise that all the facts as disclosed in the Statement of Claim are presumed to be true: Stamford Holdings Sdn Bhd v. Kerajaan Negeri Johor , [1998] 1 MLJ 607 CA .
[17] Recently, on a striking out application under O 18 r 19 (1) (a), Nallini Pathmanathan FCJ speaking for the Federal Court in Tony Pua Kiam
