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2021 MarsdenLR 2389
COURT OF APPEAL PUTRAJAYA
TRIP4ASIA SDN BHD & ANOR – Appellant
Versus
DESTINI BERHAD & OTHER APPEALS – Respondent
[Civil Appeal Nos: W-02(IM)(NCVC)-1455-08-2019 W-02(IM)(NCVC)-1454-08-2019 W-02(IM)(NCVC)-1462-08-2019 W-02(IM)(NCVC)-1461-08-2019 W02(IM)(NCVC)-1459-08-2019 W-02(IM)(NCVC)-1458-08-2019 W02(IM)(NCVC)-1457-08-2019 & W-02(IM)(NCVC)-1460-08-2019]
For fraud, misrepresentation, or conspiracy claims to succeed, a clear contractual relationship between the parties must exist; otherwise, claims are considered unsubstantiated.
Headnote:(A) Rules of Court 2012 – Order 18 Rule 19 – Striking out of pleadings – Applications to strike out the plaintiffs' claims for breach of contract, fraud, misrepresentation, and conspiracy were allowed based on the premise of no reasonable cause of action and being scandalous and vexatious – Court emphasized that striking out is a summary process, applied sparingly and only in plain and obvious cases (Paras 12-13, 25-26).
(B) Misrepresentation and Fraud – The court clarifies the necessity for a clear contractual nexus between parties for claims based on misrepresentation and fraud; the absence of contractual relationship bars these claims (Paras 24, 32).
(C) Conspiracy to Injure – Essential elements to establish conspiracy include an agreement for the purpose of injuring the plaintiff; in this case, the court found no actionable conspiracy or fraud against the defendants, leading to dismissal of plaintiffs' claims (Paras 36-37).
Facts of the case: The plaintiffs engaged the services of the defendants to arrange charter flights to Australia; however, the contract was not fulfilled, leading to allegations of breach, fraud, and misrepresentation, which the court found unsubstantiated due to lack of contractual relationships (Paras 4-6).
Findings of Court: The court affirmed the High Court's dismissal of appeals against 4th to 9th defendants, ruling the claims were frivolous and disclosed no reasonable cause of action (Par 38).
Issues: The key issues included whether the plaintiffs had a valid cause of action against the defendants concerning misrepresentation and conspiracy which was found to be nonexistent (Paras 22-25).
Ratio Decidendi: The court ruled that for claims of fraud or misrepresentation to succeed, a clear contractual relationship must exist, which was absent in this case; hence, the applications to strike out were justified (Paras 24-28).
Result: All appeals dismissed with costs.
JUDGMENT
Introduction
[1] For ease of reference, the parties to the present appeals shall be referred as they were in the High Court below.
[2] Briefly, the facts in the present appeals are as follows.
[3] The 1st plaintiff's business relationship with the 1st defendant started as early as December 2015. The 1st plaintiff had on various occasions engaged the 1st defendant's services in the arrangement of flight tickets, holiday packages and hotel accommodations for the 1st plaintiff's customers.
[4] The 2nd plaintiff came to know about the 1st defendant through the 1st plaintiff. Eventually, sometime in January 2016, the plaintiffs had decided to organise an event in Gold Coast, Australia. The event was supposed to be attended by 200 to 250 people from Guangzhou, China and Kuala Lumpur, Malaysia. Preparatory works had commenced since then. The plaintiffs decided to engage the services of the 1st defendant to source, procure, arrange and secure charter flights to Gold Coast, Australia for the said event.
[5] The 1st defendant then appointed the 4th defendant to arrange the charter flights. The 9th defendant, as one of the 4th defendant's directors, had later enquired with the 10th defendant to secure the required charter flights. The 4th defendant received a quotation of the estimated cost from the 10th defendant and forwarded it to the 1st defendant. The 4th defendant and the 10th defendant then entered into a Passenger Services Agreement dated 22 April 2016 to confirm that the 4th defendant had procured the charter flight services from the 10th defendant. A copy of the said agreement has been forwarded to the 1st defendant.
[6] However, the 4th defendant was informed by the 1st defendant that the scheduled charter flights had been put on hold and the route was changed from Australia to Japan. The 4th defendant through the 9th defendant then informed the 10th defendant regarding the change of plans. The 10th defendant subsequently requested for payment of security deposit and for new dates and routes to be provided as soon as possible. The 10th defendant's request was communicated by the 4th defendant to the 1st defendant but the matter failed to be concluded. The 4th defendant had later came to know that the plaintiffs have withdrawn their contract with the 1st defendant.
[7] The plaintiffs filed an action against a total of 13 Defendants in the High Court of Malaya in Kuala Lumpur for, among others, breach of contract, fraud, misrepresentation, and conspiracy to injure regarding the proposed charter flights to Gold Coast, Australia, which did not materialise. All the Defendants had subsequently filed an application to strike out the plaintiffs' Writ and Statement of Claim under O 18 r 19(1)(a), (b) and (d) of the Rules of 2012 (" ROC 2012"). After hearing the submission of all parties, the learned High Court Judge had allowed the 4th to the 13th defendants' applications with no order as to costs. The learned High Court Judge had dismissed the 1st to the 3rd defendants' application.
[8] Dissatisfied with the learned High Court Judge's decision, the plaintiffs filed these appeals. The 1st to the 3rd defendants did not file any appeal against the said decision.
[9] There were eight appeals filed by the plaintiffs, namely Appeals No W-02(IM)(NCVC)-1454-08-2019 (against the 4th defendant), W-02(IM) (NCVC)-1455-08-2019 (against the 13th Defendant), W-02(IM)(NCVC)- 1457-08-2019 (against the 9th defendant), W-02(IM)(NCVC)-1458-08-2019 (against the 8th defendant), W-02(IM)(NCVC)-1459-08-2019 (against the 7th defendant), W-02(IM)(NCVC)-1460-08-2019 (against the 10th, 11th and 12th defendants), W-02(IM)(NCVC)-1461-08-2019 (against the 6th defendant), and W-02(IM)(NCVC)-1462-08/2019 (against the 5th defendant).
[10] However, on 13 April 2021, notices of discontinuance have been filed by the plaintiffs with regard to Appeals No 1455 and 1460, and hence the two appeals have been struck off accordingly.
[11] This is the grounds of o
