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2025 MarsdenLR 2816
HIGH COURT MALAYA GEORGETOWN
SARASWATHI NADARAJAN – Appellant
Versus
KH KHOON CONSTRUCTION SDN BHD – Respondent
[Civil Appeal No: PA-12A-45-12/2022]
The court affirmed that striking out pleadings is warranted where no reasonable cause of action is disclosed and the defense lacks viability, emphasizing strict adherence to contractual obligations.
Headnote:(A) Rules of Court 2012 - Order 18 Rule 19 - Striking out pleadings and entering judgment - The application to strike out the Defence and Counterclaim was upheld as D's Defence was found to disclose no reasonable cause of action and was unsustainable - D failed to substantiate her claims against P for breach of contract regarding construction work - The contract signed by D was binding with terms for payment - D's appeal against the decision to strike out was dismissed. (Paras 7, 10, 36, 38)
Facts of the case:
D hired P to construct a house for RM1.65 million; P issued several progress bills, with D claiming breaches regarding delays and payment for work not completed as per contract. D filed a Defence and Counterclaim, which was struck out by the Sessions Court leading to D's appeal. (Paras 2-6)
Findings of Court:
The Court agreed with the Sessions Court's finding that D's Defence and Counterclaim were unsustainable and showed no reasonable cause of action. (Paras 36-38)
Issues: Whether D had viable defenses against P's claim and whether her Counterclaim for damages was justifiable. (Paras 34, 37)
Ratio Decidendi: The court determined that striking out was appropriate when the claims were plainly unsustainable, emphasizing D's failure to substantiate her assertions and adhere to the agreed contractual obligations. (Paras 10-14, 18-24)
Result: Appeal dismissed with costs to P. (Paras 36, 39)
| Table of Content |
|---|
| 1. factual background of the case (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. d's defence and counterclaim against p's claims (Para 15 , 16) |
| 3. court's evaluation of d's arguments (Para 18 , 26 , 30 , 34) |
| 4. d's arguments on progress bill no. 8 (Para 19 , 20 , 21 , 22 , 23 , 24 , 27 , 28 , 31) |
| 5. final judgment and order (Para 36 , 37 , 38) |
(Appeal Against Decision To Strike Out Defence And Counterclaim, And Enter Judgment Against Defendant)
Prelusion
[1] The Appellant is the Defendant in a 2022 Sessions Court Suit No. PA-A52-11-06/2022 (Suit 11). The Respondent is the Plaintiff. I will refer to the parties as "P" and "D".
[2] P is a construction contractor. D owns a property known as Lot 10010, Seksyen 6, Georgetown, Penang (Property). D hired P to build a three-storey house on the Property for the price of RM1.65 million. The contract between the parties is a letter of award dated 28 December 2020 (LOA).
[3] Between January 2021 and August 2021, P issued to D six progress bills, for a total of RM809,500.00. These first six progress bills were the subject of an earlier 2021 Sessions Court Suit No. PA-B52-11-12/2021 (the earlier suit).
[4] The earlier suit concerning the first six progress bills was pending and will be determined on its merits.
[5] On 17 March 2022, P issued another progress bill: its 8th progress bill, for RM190,000.00 (Progress Bill No. 8). Progress Bill No. 8 is the subject of Suit 11. P's claim in Suit 11 includes a claim for RM190,000.00. D filed a Defence And Counterclaim (DACC).
[6] P applied to strike out D's DACC under O 18 r 19(1) of the Rules Of Court 2012, and to enter judgment against D. The Sessions Court allowed P's application and accordingly entered judgment against D. D appealed to the High Court.
Preliminaries
[7] I dismissed D's appeal i.e. I upheld the Sessions Court's decision to strike out the DACC and enter judgment against D. The hearing was held and my decision was made on 7 August 2024.
[8] D applied for leave to appeal to the Court Of Appeal. From the Court records, I found that on 6 November 2024, P consented to D's application for leave. D was accordingly given leave to appeal to the Court Of Appeal. D filed her Notice Of Appeal.
[9] This judgment is written for D's appeal. These are the grounds for the arguments made and the decision I gave on 7 August 2024.
The Law On Striking Out Pleadings
[10] It was essential to review the principles in our procedural law on the striking out of pleadings under O 18 r 19(1).
[11] A review of the law on striking out is found in the Federal Court case of Tan Wei Hong & Ors v. Malaysia Airlines Berhad ; ; [2018] 6 AMR 529 .
[12] In Tan Wei Hong (supra), the Federal Court propounded that —
[15] Order 18 r 19 of the ROC provides:
19. Striking out pleadings and endorsements (O 18 r 19)
(1) The Court may at any stage of the proceedings order to be stuck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that —
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(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 action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under paragraph (1)(a).
(3) This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.
[16] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unsustainable (see: Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd ; ; [1993] 2 AMR 1969 ; Hubbuck & Sons, Limited v. Wilkinson, Heywood & Clark, Limited [1899] 1 QB 86; Attorney-General of the Duchy
