The tort of collateral abuse of process requires proof of damages as an essential element, which was lacking in the plaintiffs' claim.

JUDGMENT

S Nantha Balan JCA:

Introduction

[1] This appeal is essentially concerned with the tort of collateral abuse of process. The tort arises in situations where the court process is invoked, not for the genuine purpose of obtaining the relief claimed, but for a collateral or ulterior purpose. In those circumstances, the legal action could be regarded as an abuse of process.

[2] The elements which are necessary for the tort of collateral abuse of process are (a) the court action must be initiated, (b) the dominant purpose of filing the action must be to obtain a collateral advantage or it must be for some purpose other than to obtain genuine redress which the process offers, and (c) the defendant must have thereby suffered damage. See: The court of Appeal's decision in Malaysia Building Society Bhd v. Tan Sri General Ungku Nazaruddin Ungku Mohamad, 1998 MarsdenLR 1755 ( CA ) ("MBSB").

[3] In this appeal the question is whether the tort of collateral abuse of process should continue to be recognised as a distinct cause of action, and whether the time has come for the Malaysian courts to follow the route that was taken by the Singapore court of Appeal in Lee Tat Development Pte Ltd v. Management Corporation of Grange Heights Strata Title Plan No 301 [2018] SGCA 50 ("Lee Tat") which resulted in the demise of the tort of collateral abuse of process in that jurisdiction.

The Appeal

[4] This is an appeal by the plaintiffs against the post-trial decision of the Learned Judge of the High court dated 15 April 2019 dismissing the plaintiffs' claim via Kuala Lumpur High court Suit No: WA-22NCC-197-05/2018 ("Suit 197") with costs of RM50,000.00. The defendants filed a cross-appeal.

[5] The Judgment of the High court is reported at: Conweld Engineering Sdn Bhd & Ors v. Goh Swee Boh @ Goh Cheng Kin & Anor. For convenience and consistency, we shall refer to the Appellants and Respondents as "plaintiffs" and "defendants" respectively.

Parties

[6] The 2nd plaintiff (Low Terk Chen) ("P2") is the younger brother of the 3rd plaintiff (Low Man Fook) ("P3"). The 1st defendant (Goh Swee Boh @ Goh Cheng Kin) ("D1") is the father of the 2nd defendant (Goh Tze Chien) ("D2"). The 1st plaintiff in Suit 197, namely, Conweld Engineering Sdn Bhd shall be referred to as "the Company".

[7] For all intents and purposes D1 is the founder of the Company. P2 later joined the Company and was given shares. D1 described himself as P2's "teacher" and that P2 was his "protege". P2 brought in his elder brother, P3. P3 was given shares in the Company.

[8] As part of the process of succession, D1 brought in his son, D2. D2 was given shares in the company. P2 and P3 held 65% of the shares in the Company whereas D1 and D2 ended up as minority shareholders cumulatively holding 35% shares in the Company. Thus, the final shareholding position is P2 and P3 ("Low Brothers") held 65% of the shares in the Company, and D1 and D2 ("Goh Family") held 35% shares in the Company. P2 and P3 were in the driver's seat and they managed the Company. The defendants had no role in the management of the Company.

The Problem

[9] There were serious differences between the Low Brothers and the Goh Family. The relationship between the Low Brothers and the Goh Family deteriorated. P2 went so far as to convene an Emergency General Meeting to remove D1 as a director of the Company.

[10] On or about 12 December 2014, D1 resigned as the chairman and director of the Company in order to avoid the ignominy of being "removed" as a director of the Company which he had founded. On 30 June 2017, D2 was removed as a director of the Company.

[11] In the period between 2015 and 2016, there was an agreement between D1 and P2 for the sale of D1's remaining 300,000 shares in the Company to P2 for a total consideration of RM1,890,000.00. At the same time, there was also an agreement between P2 and D2 for the sale of D2's entire shareholding in the Company for RM4.80 per share. However, both agreements were not carried out. Su