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2011 MarsdenLR 1503
HIGH COURT MALAYA, JOHOR BAHRU
YAP AKAU YAP YUEN HENG – Appellant
Versus
CHAI SIEW KEION & ANOR – Respondent
[23Ncvc-109-2011]
A second action claiming the same relief is abusive if the prior action was dismissed for procedural non-compliance, not appealed, thus circumventing appeal procedures.
Headnote:(A) Rules of the High Court 1980 - Order 18 rule 19(1)(a), (b) & (d) - Strike out application - The court found the Statement of Claim disclosed no reasonable cause of action and was vexatious and constituted an abuse of process - The 1st defendant's fraudulent actions and the plaintiff's delayed discovery of fraud were noted - The second suit was found to be an abuse as it mirrored a previously struck action. (Paras 1, 3, 6, 10, 22)
(B) Abuse of Process - A second action is abusive if filed after a previous suit on the same matter was dismissed for non-compliance, necessitating an appeal instead - General rule established in case law regarding abuse of process was highlighted and upheld. (Paras 11, 12, 14)
(C) Limitation - Discovery of fraud stipulates that questions of fact regarding the limitation period are to be determined during the trial. (Paras 8, 20)
Facts of the case:
The plaintiff alleges fraud and forgery by the 1st defendant with complicity of the 2nd and 3rd defendants; prior action was struck for non-compliance.
Findings of Court:
The current action is deemed an abuse of process, raising no new grounds or merits beyond the earlier case.
Issues: Determining the reasonable cause of action and whether the present action constitutes an abuse of process based on the prior action's dismissal.
Ratio Decidendi: The plaintiff failed to provide justification for the current action post-dismissal of the prior suit, thus establishing abuse of judicial process.
Result: Plaintiff's action dismissed with costs.
| Table of Content |
|---|
| 1. filing a second action after a strike out constitutes abuse of process. (Para 1 , 1 , 10 , 11) |
| 2. determination of reasonable cause of action can be established through evidence. (Para 2 , 7 , 9) |
| 3. plaintiff must show cause against abuse of process claims. (Para 4 , 12) |
| 4. no prior merits consideration in the previous action does not invalidate the current action. (Para 5 , 6) |
| 5. reasonable cause of action determines court action (Para 8) |
1. The 1st defendant's application was made under O 18 on the grounds that the Statement of Claim (a) discloses no reasonable cause of action, (b) is scandalous, frivolous or vexatious, or (d) is otherwise an abuse of process of the Court. The 2nd defendant's application is grounded on para, (d) only. The 3rd defendant's application is grounded on paras, (b), (c) and (d). Para, (c) relates to the prejudice, embarrassment or delay caused to the fair trial of the action. As the grounds in paras, (a) to (c) of O 18 r 19(1) are inter-related, they will be dealt with jointly.
Grounds (a), (b) and (c)
2. The question of whether the Statement of Claim discloses a reasonable cause of action may be determined on a perusal of the Statement of Claim.
3. The plaintiff's claim is for damages arising from a fraudulent transaction carried out by the 1st defendant, abetted by the 2nd defendant and the 3rd defendant; including an allegation that 1st defendant committed forgery of certain charge instruments.
4. It is contended by the 1st defendant and the 3rd defendant that the plaintiff's claim is time-barred as the discharge of the subject property was discharged on 26.7.2000; alternatively, the course of action arose when the issue document of title was collected by a representative of the plaintiff on 4.2 2001.
5. According to the para. 6 of Statement of Claim, the plaintiff discovered the alleged fraud on or about 17.10.2005 when he wanted to transfer the property to his son.
6. The particulars of the alleged fraud are set out in para. 9(a) - (i) of the Statement of Claim.
7. On the face of the pleaded facts and issues in the Statement of Claim, it is plain that there is a reasonable cause of action premised on fraud perpetrated against the plaintiff.
8. As for limitation, the question of when the plaintiff discovered the fraud, and whether the plaintiff could by reasonable diligence have discovered the fraud are questions of fact which can only be determined at trial.
9. On a consideration of the above premises, the Court is of the view that this is not a plain and obvious case where the action ought to be struck out under paras, (a) to (c).
Ground (d)
10. Learned counsel for the 2nd defendant submitted that the action is an abuse of process as a suit filed in 2009 on the same issues and reliefs was struck out on 9.3.2011 by the judge by reason of the plaintiff's failure to comply with the Court's directions. The plaintiff did not appeal against that decision but instead filed this action which is all respects identical to the 2009 action (Lim Oh & Ors v. Allen & Gledhill , ; Boo Are Ngor v. Chua Mee Liang ; [2008] 4 CLJ 533 (CA) ).
11. The general rule as enunciated by the Court of Appeal in Boo Are Ngor, supra is that where a plaintiffs action is struck out for disobedience of a peremptory order, a second action would constitute an abuse of the process of the Court.
12. Learned counsel for the plaintiff contended that the 2009 action was struck out without any consideration of the merits of the case and cited the Federal Court decision in Pembinaan Dan Pemaju Mahajiwa (Selangor) Sdn v. ASM Development Sdn Bhd , .
13. In the Lim Oh case, the plaintiffs suit was dismissed upon the plaintiffs failure to effect an amendment within a prescribed time frame. The plaintiff did not appeal against that decision but instead filed a fresh suit. The Federal Court held that plaintiff ought to have appealed against the decision of the Court in the first suit and that the filing of the second suit amounted to a de
