JUDGMENT

Roz Mawar Rozain J:

Introduction

[1] On 19 March 2025 this Court had allowed the 4th Defendant's application via encl 24 to strike out the Plaintiff's claim against it. This Court 's decision was premised on O 18 r 19(1)(a)-(d) Rules of 2012 (RoC) and the trite legal principles established by our case laws. Reasonable costs of RM5.000 was awarded to the 4th Defendant. The Plaintiff has appealed against my decision. My full written reasons are iterated below.

Background Facts

[2] The Plaintiff is a private limited company engaged in the business of wholesaling, retailing, and trading personal protective equipment. It was formerly known as Gulatis Global Gloves Sdn Bhd.

[3] The 1st Defendant is a private limited company providing information technology services, with the 2nd and 3rd Defendants as its directors and/or shareholders.

[4] The 4th Defendant is an individual who, according to the Plaintiff's Statement of Claim (SoC), had allegedly entered into a Consultancy Agreement with the Plaintiff dated 12 March 2021 (Consultancy Agreement).

[5] The Plaintiffs claim against the 1st to 3rd Defendants is primarily for breach of a Micro-Fulfilment Service Agreement (MFSA) executed on 16 August 2021 between the Plaintiff and the 1st Defendant.

[6] As against the 4th Defendant, the Plaintiffs claim is for breach of the alleged Consultancy Agreement. The reliefs sought by the Plaintiff against the 4th Defendant are:

(a) a declaration that the 4th Defendant acted in breach of the contractual obligations under the Consultancy Agreement; and

(b) a declaration that all the Defendants (the 1st to the 4th Defendants) are jointly and severally liable to pay special damages in the sum of RM1,748,245.20.

The 4th Defendant's Application (Enclosure 24)

[7] The 4th Defendant's application to strike out cited 3 main grounds:

(i) The Plaintiffs claim of breach of contractual obligations under the Consultancy Agreement was misconceived;

(ii) The Plaintiff raised new facts in their Reply to the 4th Defendant's Defence, which were inconsistent with the Plaintiffs SoC; and

(iii) The Plaintiffs SoC lacked particulars and elements of the acts and/or omissions that allegedly constitute the breach of the Consultancy Agreement.

[8] The Plaintiff, on the other hand, contended that:

(a) There were triable issues raised by the 4th Defendant which ought to be ventilated at trial;

(b) The facts raised in the Plaintiffs Reply to the 4th Defendant's Defence were consistent with their claim; and

(c) The Plaintiffs pleaded elements of tort were satisfied, with particulars adequately pleaded in the SoC.

Analysis And Findings By This Court

Ground 1: The Breach Of Contractual Obligations Under The Consultancy Agreement Was Misconceived

[9] The cornerstone of the Plaintiffs claim against the 4th Defendant was that the alleged Consultancy Agreement dated 12 March 2021. In paras 18 and 19 of the Statement of Claim, the Plaintiff pleaded:

"18. The Plaintiff contends and will contend that the 4th Defendant acted in breach of his contractual duties under the Consultancy Agreement.

Further to the above, the Plaintiff contends and will contend that the 4th Defendant carried out his services negligently and in breach of his contractual duties under the Consultancy Agreement and/or his duty of care to the Plaintiff as a consultant."

[10] Upon a Notice to Produce Documents Referred to in Pleadings dated 4 March 2024 filed by the 4th Defendant pursuant to O 24 r 10 of the RoC, the Plaintiff furnished the so-called Consultancy Agreement.

[11] A critical examination of this document revealed that it is on the letterhead of Gulatis Exclusive Sdn Bhd (Company Registration No.: 199101016925 (227237-H)) and not the Plaintiff, Gulatis Global Business Sdn Bhd The agreement was between the 4th Defendant and Gulatis Exclusive Sdn Bhd, which is a separate legal entity from the Plaintiff.

[12] The Plaintiff had attempted to argue, in its Affidavit in Reply (Enclosure 26, para 7.1), that the Plaintiff is pa