Appeal

On 10 November 1995, the learned senior assistant registrar made an order that the plaintiffs' statement of claim against the sixth, seventh and eighth defendants be struck out. The plaintiffs have now appealed against that decision.

The defendants' application

The sixth, seventh and eighth defendants' application in encl 29 was grounded upon the reason that the plaintiffs' statement of claim against the sixth, seventh and eighth defendants does not disclose any cause of action. Apparently, this application was founded upon O 18 r 19(1)(a) of the Rules of the High Court 1980 ('the RHC'), which means that in such an application, no affidavit evidence shall be admissible: O 18 r 19(2) of the RHC. In the circumstances, I shall refer to the parties' pleadings to determine whether on the averments therein, a reasonable cause of action has been disclosed.

The facts

The following facts, as ascertained from the plaintiffs' statement of claim, are undisputed:

At various dates in 1978 and 1979, the first, second and third defendants agreed to sell subdivided portions of the land held under Title EMR 3323 Lot No 1025, Mukim of Cheras, District of Kajang ('the said land') to the first - eighth plaintiffs.

The plaintiffs claimed to have paid certain sums to the first, second and third defendants who did not carry out any transfer of any portion of the said land to any of the plaintiffs.

On 27 March 1990, the first, second and third defendants transferred the said land to the fifth defendant.

On 4 June 1990, the first and second plaintiffs entered private caveats against the said land.

On 27 December 1991, these private caveats were removed by the Land Administrator on the application of the fifth defendant.

About 12 months later, on 10 December 1992, the fifth defendant transferred the said land to the sixth, seventh and eighth defendants.

The plaintiffs' submission

It was submitted on behalf of the plaintiffs that the plaintiffs' statement of claim, in particular, paras (18), (20) and (21) did disclose a reasonable cause of action based on fraud and/or illegality. The plaintiffs further contended that the court can only strike out the claim against the sixth, seventh and eighth defendants if it is 'obviously unsustainable'.

The defendants' contention

The defendants are of the view that the plaintiffs are making three claims, viz:

against the first, second and third defendants, for breach of contract;

against the fifth defendant, for fraud; and

against the sixth, seventh and eighth defendants, for fraud.

In this appeal, the court is only concerned with whether the plaintiffs have a cause of action against the sixth, seventh and eighth defendants.

The plaintiffs pray that the transfer of the said land, in favour of the sixth, seventh and eighth defendants on 10 December 1992, be declared invalid and that all endorsements relating thereto be cancelled and expunged.

The sixth, seventh and eighth defendants submitted at great length on the absence of fraud on their part and relied upon s 340(1) and (2) of the National Land Code 1965. The sixth, seventh and eighth defendants further argued that to justify the court to make the orders as in the prayers claimed against them, the plaintiffs must allege and prove that the sixth, seventh and eighth defendants had obtained their registered title to the said land by committing fraud. Thus, the issue is whether the plaintiffs have pleaded a triable issue based on or arising out of fraud against the sixth, seventh and eighth defendants. The sixth, seventh and eighth defendants held the view that there is no triable issue against them.

The decision of the court

Upon a proper perusal of the plaintiffs' statement of claim, I observe that the averments in respect of the sixth, seventh and eighth defendants appear in paras (18), (20) and (21), which are reproduced below:

(18) The plaintiffs will contend that the fifth defendant irregularly presented the transfer in favour of the sixth,