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2010 MarsdenLR 255
HIGH COURT MALAYA, KUALA LUMPUR
LIAN MENG WAH – Appellant
Versus
WEE SU LIN & ORS – Respondent
[Civil Suit No: S-22-629-2009]
A liquidator may be sued in their capacity as such, and claims for malicious prosecution require proof of lack of reasonable grounds and malicious intent.
Headnote:(A) Companies Act 1965 - Sections 236(2)(a), 269(1)(b) - Malicious prosecution and abuse of process claims against a liquidator for alleged improper actions in commencing contempt proceedings - Court identified the legal threshold for proving malicious prosecution, focusing on lack of reasonable ground and malicious intent - The liquidator's actions were analyzed to determine if there was an abuse of process when pursuing contempt charges. (Paras 19-29)
(B) Pleadings - The principles for striking out claims under O. 18 r. 19 of the Rules of the High Court are well established, emphasizing that it must be a plain and obvious case. The Court held that mere denial does not suffice to strike out claims that disclose a reasonable cause of action. (Paras 34-46)
Facts of the case:
The plaintiff, a practicing lawyer, faced a contempt action initiated by the 4th defendant, who was alleged to have acted with malice and without reasonable grounds. Disputes arose following a judgment in default against the plaintiff, leading to claims of malicious prosecution. (Paras 2-10)
Findings of Court:
The Court found that the pleadings presented sufficient grounds for the claims to proceed to trial, emphasizing that potential difficulty in proving a tort does not justify striking it out summarily. (Paras 46-48)
Issues: The main questions were whether the plaintiff properly named the 4th defendant as a party and whether the plaintiff's claims met the legal threshold required to prove malicious prosecution or abuse of process. (Paras 11 and 19)
Ratio Decidendi: The court concluded that both the plumber’s claim and allegations against the liquidator were not plainly unsustainable and warranted examination at trial. The court asserted a liquidator may be sued in their representative capacity and noted potential malice in the contempt proceedings pursued. (Paras 46-48)
Result: The 4th defendant's application to strike out the claim was dismissed.
Prologue
[1] This case highlights the dangerous practice of not affirming an affidavit before a commissioner for oaths and to do so in the cozy comfort of one's office and leaving it to one's office boy to bring it to a commissioner for oaths who is said to have constructive knowledge of one's signature. The practice must stop, else when objections are raised, the deponent might find himself facing a contempt action.
Problem
[2] The plaintiff was at all material times an advocate and solicitor of the High Court of Malaya. The 4th defendant is the liquidator of Asia Radio (M) Sdn Bhd. The 4th defendant had on or about June and August 2000, appointed the plaintiff's legal firm Messrs MW Lian & Associates to act for them for the disposal of two properties. A dispute subsequently arose between them that resulted in the 4th defendant commencing a legal suit against the plaintiff and obtained judgment in default against the plaintiff on 10 May 2002 for RM195,985. There was no execution on this judgment because the plaintiff had made payments to the Inland Revenue Board for the monies retained by the plaintiff towards such payment. There was also a judgment in default of defence for a declaratory order against the plaintiff obtained on 16 June 2003 that the plaintiff be liable for all losses, penalties and expenses incurred by the delay in payment of the RPGT.
[3] The plaintiff applied to set aside the judgment in default of defence and various affidavits were filed. There was an affidavit affirmed by the plaintiff on 12 June 2006 (the impugned affidavit) that seemed to have stir up the hornets' nest. The 4th defendant had commenced an action in the High Court for leave to commence committal proceedings against the plaintiff apparently because the commissioner for oaths' signature is forged and the rubber stamp in the impugned affidavit is false. The leave application was dismissed on 28 March 2007. The 4th defendant initially did not appeal against the said refusal of leave.
[4] The plaintiff made a file search several months later and discovered the draft order of dismissal and promptly issued a letter of demand dated 17 September 2007 to the then 4th defendant's solicitors Messrs Low Chee Hoong claiming abuse of process to malign the liberty and professional livelihood of the plaintiff.
[5] According to the plaintiff in his pleaded case, the 4th defendant reacted to the letter of demand by filing a notice of motion dated 5 October 2007 for leave of the Court of Appeal for extension of time to file the notice of appeal. Leave was granted on 17 December 2008 by the Court of Appeal in the absence of the plaintiff.
[6] The appeal was unanimously dismissed with costs on 21 January 2009 but not after the plaintiff had engaged the help of a senior counsel to assist him in the appeal hearing.
[7] The plaintiff brought this action for damages for malicious prosecution of contempt by the 4th defendant against the plaintiff and for abuse of process of Court by the 4th defendant. Particulars of malice and abuse of process were set out in the amended statement of claim.
[8] Some of the 'particulars of abuse of process' are as follows:
(a) Using the contempt proceedings for collateral purpose that is to pressure the plaintiff to concede and to settle with the 4th defendant in the pending Kuala Lumpur High Court Suit: S2-22-319-2002,
(b) Using the contempt proceedings to work oppression, knowing that the plaintiff is a practicing lawyer and contempt proceedings shall malign his liberty as well as his professional livelihood as a lawyer,
(c) Unilaterally, taken over the contempt proceedings and to prosecute the same by the defendants themselves and thus usurp the function of the Attorney General and the Police,
(d) Without awaiting for the outcome of the Police Investigation, prematurely using and abusing contempt proceedings to launch attacks on the plaintiff's reputation, liberty, personality,
(e) Exhibited a 'mala fide ' conduct whilst maki
