Back
2024 MarsdenLR 26
SESSION COURT SHAH ALAM
NGU KOH KIET – Appellant
Versus
KOPERASI PEMBANGUNAN PENDIDIKAN BHD & ANOR (ENCL 13) – Respondent
[Civil Suit No: BA-A52-98-09/2023]
The Court lacks jurisdiction to hear disputes under the Co-operative Societies Act 1993 without prior referral to the Commission, constituting an abuse of process.
Headnote:(A) Co-operative Societies Act 1993 - Sections 82 and 83 - Rules of 2012 - Order 18 r 19 - Plaintiff, a member of a co-operative society, sought to recover RM22,162.00 based on a Fund Agreement, claiming breach of fiduciary duty by the Defendants - Court found that the dispute falls within the jurisdiction of the Commission as per s 82(1) of the Act and must be referred there first - Court emphasized the necessity of following the statutory procedure and that the Plaintiff's action constituted an abuse of process. (Paras 51, 54, 100, 102)
Findings of Court:
The Court concluded that it lacked jurisdiction to hear the case as the matter should have been referred to the Commission under the Co-operative Societies Act 1993.
Issues: The main issue was whether the Court had jurisdiction to hear the dispute given the statutory framework provided for dispute resolution within the Act.
Ratio Decidendi: The Court held that the Plaintiff must first refer the dispute to the Commission as mandated by the Co-operative Societies Act 1993, and failure to do so constituted an abuse of process.
Result: Application allowed with costs.
JUDGMENT
(Enclosure 13 Application For Striking Out)
A. Introduction
[1] On 22 November 2023, the Defendant vide encl 13 applied for striking out Plaintiff's Statement of Claim dated 12 September 2023 pursuant to O 18 r 19 (1)(a), (b), (c) and (d) of the Rules of 2012 (ROC 2012).
[2] On 5 March 2024, i allowed the Defendant's application with cost of RM3000. Hence, this appeal.
[3] The relevant cause papers in this Application are as follows:
a. The amended Writ dated 3 November 2023;
b. The amended Statement of Claim dated 3 November 2023;
c. Statement of Defence dated 22 November 2023;
d. Notice of Application Defendant dated 22 November 2023;
e. Affidavit in Support of Defendant dated 22 November 2023;
f. Plaintiff's Statement of Reply to the Defence dated 14 December 2023;
g. Plaintiff's Affidavit in Reply dated 20 December 2023; and
h. Defendant's further Affidavit dated 10 January 2024.
B. Salient Facts Of The Case
[4] This is a case concerning disputes in cooperative society.
[5] The Plaintiff is a member of the First Defendant's co-operative society.
[6] First Defendant is a cooperation established under the Co-operative Societies Act 1993 .
[7] Plaintiff entered into a Koperasi Pembangunan Pendidikan Bhd (KOPP) Fund Agreement (Fund Agreement/Schoiarship Fund Agreement) dated 1 September 2008 with the First Defendant, This agreement concerns an education investment fund for the Plaintiffs child. Plaintiff needed to pay contribution for this investment. After the maturity date of the investment, the Plaintiff applied for a return. Nevertheless, the Plaintiff did not receive any refund/return from the First Defendant.
[8] Second Defendant is the trustee appointed by First Defendant under a Trust Agreement dated 1 December 1994 to manage the Plaintiffs Trust Fund investment.
[9] The Plaintiff averred that both Defendants are jointly and severally liable to fulfil their obligations towards the Plaintiff.
[10] Plaintiff commenced this action against both First and Second Defendant to recover the money/alleged debt of RM22,162.00 which accordingly the First Defendant has to pay to the Plaintiff based on the Fund Agreement.
C. Computing Arguments Of Parties
Submission By The Defendants
[11] The Defendants premised their application on O 18 r 19 (1) of Rules of 2012. Defendants relied on the ground of no reasonable cause of action and also averred that the Plaintiffs' action against the Defendants is an abuse of the process of Court and therefore obviously unsustainable.
[12] The Defendants advanced 3 main grounds to convince this Court why their striking out application should be allowed.
(i) This Court has no jurisdiction to hear the case as the disputes concerns management or business of the co-operative society and such case should be filed in the domestic forum, i.e the tribunal. A reference shall be made to the Commission and no other outside tribunal or Court has any jurisdiction to hear such disputes;
(ii) There is no privity of contract in between the Plaintiff and the Second Defendant as the Plaintiff is not a party to the Deed of Trust signed in between the First and Second Defendant. Plaintiff relied on the two authorities below and submitted that even if the Deed of Trust is made for the benefit of the Plaintiff, the Plaintiff is definitely not a party to the Deed and hence cannot enforce or rely for protection on its provisions.
a) Tan Poh Yee v. Tan Boon Thien & Other Appeals, [2017] 3 MLJ 244:
[17] ... The respondent was a stranger to the purported 2004 Agreement and as a matter of law, could not take advantage of its provisions notwithstanding that some provisions thereof were intended to benefit him.
[18] The fundamental principle of law on this point has been constantly followed and repeated by our courts that only a party to a contract can sue on it and only the parties to a contract has enforceable rights and obligations under such contract. We may categorically state, as an extension to this principle, that no str
