Abdul Malik Ishak J:

Introduction

The learned senior assistant registrar ("SAR") heard encl. 25 which was an application by the defendant to strike out the plaintiff's amended statement of claim in encl. 22 under O. 18 r. 19(1)(a), or (b), or (d) of the Rules of the High Court 1980('RHC') and, on 25 August 2000, the learned SAR allowed the defendant's application. Aggrieved by that decision, the plaintiff filed a notice of appeal to the judge in chambers as seen in encl. 29. Incidentally, the defendant has filed its amended statement of defence as seen in encl. 23.

Facts Of The Case

The plaintiff's claim was founded on negligence of the defendant in proceeding with the bankruptcy proceedings against the plaintiff by obtaining the adjudication and receiving orders although the plaintiff had settled the debt halfway through the bankruptcy proceedings. As a result thereof, the plaintiff was said to have suffered losses and claimed for damages.

The plaintiff filed the suit against the defendant on 14 October 1996 as reflected in encl. 1. According to encl. 1, the essence of the plaintiff's pleaded case against the defendant was simply that the defendant had negligently and/or in bad faith made the plaintiff a bankrupt based on a judgment debt owed by the plaintiff to the defendant notwithstanding the fact that the plaintiff had settled the judgment debt. That judgment debt was settled by the plaintiff after the defendant had commenced the bankruptcy proceedings against the plaintiff.

Dissatisfied with the statement of claim as seen in encl. 1, the plaintiff proceeded to file an application on 23 December 1999 to amend his statement of claim and that application can be seen in encl. 21. That application in encl. 21 was supported by an affidavit affirmed by the plaintiff on 23 December 1999 which was filed on the same date and that affidavit in support can be seen in encl. 20. One of the amendments sought by the plaintiff was to specifically delete and remove the allegation of mala fidefrom his statement of claim. According to the plaintiff, the allegation of mala fidehad originally been inadvertently included in his statement of claim and this averment can be seen in para. 4 of encl. 20 which was worded in this way:

Saya juga diberitahu oleh peguam saya bahawa peguam defendan telah menghubungi peguam saya sama ada saya akan mengemukakan butir-butir 'mala fide'sebagaimana yang dinyatakan dalam pernyataan tuntutan. Saya kemudiannya dinasihatkan dan percaya kemasukan 'mala fide'di perenggan 17 adalah dengan tidak sengaja dan saya telah mengarahkan peguam saya supaya memotong perkataan tersebut dari pernyataan tuntutan.

Using para. 4 of encl. 20 as a leverage, a submission was made on behalf of the defendant that such an averment showed the unequivocal admission by the plaintiff that there was no bad faith on the part of the defendant in obtaining and securing the adjudication and receiving orders against the plaintiff.

On 11 February 2000, the learned SAR allowed the plaintiff's application in encl. 21. This meant that the statement of claim was duly amended as proposed by the plaintiff. On 4 April 2000, the defendant filed encl. 25 which was an application to strike out the amended statement of claim and the suit.

The Nature Of The Application In Encl. 25

It was an application to strike out the plaintiff's amended statement of claim under O. 18 r. 19 of the RHC. That rule is worded as follows:

19 Striking out pleadings and indorsements

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement, of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court;

and may order the ac