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2025 MarsdenLR 1364
HIGH COURT MALAYA KUALA LUMPUR
SS MOTOR CENTURY SDN BHD – Appellant
Versus
WAWASAN SINAR GEMILANG SDN BHD & ORS – Respondent
[Suit No: WA-22NCvC-642-11/2023]
Vicarious liability cannot attach to landlords for tenant actions absent an employer-employee relationship; claims must show reasonable cause to avoid being struck out.
Headnote:(A) Rules of Court 2012 - Order 18, Rule 19(1) - Application to strike out Writ and Statement of Claim - D4 and D5 claim Plaintiff's action is without reasonable cause and constitutes an abuse of court process due to lack of vicarious liability - Court affirms that tenant's actions do not establish landlord's vicarious liability in absence of employer-employee relationship (Paras 13, 18, 20, 24).
(B) Legal principles on striking out pleadings - Only plain and obvious cases may be struck out, where claims show no reasonable cause and are seen as frivolous or vexatious without detailed consideration of issues (Paras 16, 19).
Facts of the case:
The Plaintiff, a motorcycle spare parts company, suffered business losses due to a fire from D1's Factory, owned by D4 and D5. D4 and D5 argued no responsibility for D1's actions.
Findings of Court:
Court agrees with D4 and D5, ruling no vicarious liability exists and allowing the strike-out application.
Issues: The court examined whether the Plaintiff could pursue claims against D4 and D5 without an employer-employee relationship or existing duty of care.
Ratio Decidendi: The court concluded that absent an employer-employee relationship, D4 and D5 cannot be held vicariously liable for claims against D1.
Result: Application granted; Plaintiffs to pay RM3,000 costs to D4 and D5.
| Table of Content |
|---|
| 1. factual background of the parties (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11) |
| 2. defendants' arguments against liability (Para 14 , 15) |
| 3. court's reasoning on summary striking out (Para 16 , 17 , 18) |
| 4. vicarious liability analysis (Para 19 , 20 , 21 , 22) |
| 5. conclusion and order by the court (Para 24) |
[1] This was an application by the 4th Defendant ('D4') and 5th Defendant ('D5') to strike out the Plaintiff's Writ and Statement of Claim ('SoC') dated 15 November 2023 pursuant to limbs (a) to (d) of O 18, r 19(1) of the Rules of Court 2012 ('RC 2012').
[2] The Plaintiff is a company incorporated under the Companies Act 1965 with its registered address at No 4-1, Suite 2, Bangunan Simvest, Jalan Seri Bintang 4 (7/36), Bukit Sri Bintang, 52100 Kuala Lumpur and business address at 6, Jalan Metro Perdana Barat 11, Taman Perindustrian Sri Edaran, 52100 Kuala Lumpur ('Plaintiff's Factory'). The Plaintiff is in the business of wholesaling and trading of motorcycle spare parts.
[3] The 1st Defendant ('D1') is also a company incorporated under the Companies Act 1965 with its registered address at No 19 (Suite A), Jalan Forest Heights 8, Forest Heights, 70450 Seremban, Negeri Sembilan and business address at No 6, Jalan 9/34B, Off Jalan Kepong, Sri Edaran Industrial Park, 52100 Kuala Lumpur ('D1's Factory'). D1 carries out paper coating and varnish works at D1's Factory, which is adjacent to the Plaintiff's Factory.
[4] The 2nd Defendant ('D2') and 3rd Defendant ('D3') are the directors of D1.
[5] D4 and D5 are the registered owner of the property known as PN26981, Lot 55065, Mukim Batu, Daerah Kuala Lumpur ('Property') where D1's Factory is located.
[6] The Plaintiff alleged that, on 24 August 2023, a fire which originated from D1's Factory had spread to the Plaintiff's Factory. The Plaintiff's workers contacted the Fire and Rescue Department ('FRD') and the firemen extinguished the fire.
[7] The Plaintiff was informed by the FRD that the source of the fire was because there had been a "resistance heating" on the motor of the machine in D1's Factory, which is attributed to the flammable material around the machine.
[8] Due to the damage from the fire, the Plaintiff's Factory could not be used and occupied, thus resulting in loss of business to the Plaintiff. The Plaintiff brought this action against D4 and D5 as the landowners.
[9] It is undisputed fact that the Plaintiff had signed the Discharge, Indemnity and Subrogation Form dated 13 December 2023 with Takaful Ikhlas General Berhad ('Takaful Ikhlas') and the Property Discharge and Subrogation Forms dated 23 January 2024 with Generali Insurance Malaysia Berhad ('Generali').
[10] Pursuant to the abovementioned Forms, the Plaintiff was paid RM1,462,383.27 by Takaful Ikhlas and RM3,661,995.42 by Generali.
[11] On 11 June 2024, Takaful Ikhlas and Generali made a claim for the said amounts against D1 vide Suit No WA-22NCC-386-06/2024 ('Suit 386'). Suit 386 was transferred from the Commercial Division of the Kuala Lumpur High Court to this Court on 8 October 2024 and registered as Civil Suit No: WA-22NCvC-174-03/2025 ('Suit 174'). On 17 March 2025, an order was made for the present suit to be heard together with Suit 174.
[12] The cause papers in relation to encl 37 are as follows:
(a) Notice of Application dated 17 July 2024 (encl 37);
(b) D4's and D5's Affidavit In Support ('AIS') affirmed by D5 on 16 July 2024 (encl 36);
(c) the Plaintiff's Affidavit In Reply ('AIR') affirmed by its Director, See Soo Sien on 13 August 2024 (encl 38); and
(d) D4's and D5's AIR affirmed by D5 on 30 August 2024 (encl 40).
[13] D4 and D5 relied on all four limbs under O 18, r 19(1) of the RC 2012 in their attempt to strike out the Writ and SoC, which reads as follows:
" Striking out pleadings and endorsements (O 18, r. 19)
19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or a
