Defendants' claims must be obviously unsustainable for striking out, requiring clear evidence of title which was not established in this case.

Introduction

[1] Both Encl 24 and Encl 29 are the Plaintiffs' application to strike out the 2nd and 3rd Defendants' defences respectively pursuant to paragraphs (a), (b) and (d) of O 18 r. 19(1) of the Rules of Court 2012 (" ROC ") as well as the inherent jurisdiction of the Court.

[2] The striking out applications were allowed by this Court on 25 March 2025 and Judgment entered against both the 2nd and 3rd Defendants. These are the grounds for this Court's decision.

Facts

[3] The Plaintiffs are the registered sublessees of the land held under Native Title No: 083270660 (formerly held under Field Registrar No: 084005005) measuring 1.674 hectares (4.136 acres), situated at Kg Paitan, Labuk Sugut, in the district of Beluran (hereinafter called "the said Land") for a period of 30 years.

[4] After the Plaintiffs have subleased the said Land, the Plaintiffs appointed a surveyor to conduct a boundary survey on the said Land and discovered that the 2nd Defendant operates a workshop on a portion of the said Land while the 3rd Defendant operates a shop.

[5] Despite notice to quit and several demands issued to the 1st, 2nd, and 3rd Defendants to peacefully deliver vacant possession of the said Land, they have refused to do so.

[6] The Plaintiff initially took out an Originating Summons under O 89, r 1 ROC to recover possession of the said Land but was converted into a Writ action. The 1st Defendant failed to file his defence, and Judgment in Default of Defence was entered on 2 September 2024.

The Law On Striking Out Actions Under Order 18 Rule 19

[7] The law on striking out is well settled. It must be plain and obvious that the claim is not sustainable.

[8] In Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd 1993 MarsdenLR 99 ; ; ; [1993] 2 AMR 1969 , the (then) Supreme Court (per Mohamed Dzaiddin bin Hj Abdullah SCJ) decided that:

The principles upon which the Court acts in exercising its power under any of the four limbs of O 18 r 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney- General of Duchy of Lancaster v. L. & N.W. Ry. Co [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney[1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in para materia with our O 33 r 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.

[Emphasis Added]

[9] In Tan Wei Hong & Ors v. Malaysia Airlines Berhad 2018 MarsdenLR 2584 ; ; ; , the Federal Court (per Ramly Ali FCJ) explained what is meant is by "obviously unsustainable" in the following manner:-

[19] The basic test for striking out as laid down by the Supreme Court in Bandar Builder(supra) is that the claim on the face of it must be 'obviously unsustainable'. The stress is