JUDGMENT

Indera Mohd Arief Emran Arifin J:

(Enclosure 67)

[1] The Appellants, the 1st and the 9th Defendants, have sought to strike out the Plaintiff's / Respondent's claim on the grounds that:

(i) Timor has no capacity to act in a derivative action on behalf of the company as he is no longer a director of the company.

(ii) Timor has no Locus Standi to act.

(iii) Timor has no sufficient interest in continuing with this claim against the Defendants in a derivative capacity.

[2] It has been brought to the attention of this Court that Timor has since obtained an interim order that entitles to remain to be a director of the company before Justice Leong Wai Hong.

[3] In view of the same, the said Defendants sought to withdraw the application with liberty to file afresh. The said application was not objected to by the Plaintiff / Respondent.

[4] This Court after considering the application finds that the said application should be struck out without liberty to file afresh. The reason for this is simply because this claim has been set down for trial and dates have been fixed in September 2026 to October 2026. The Defendants are at liberty to raise this issue again at trial in its defence if Justice Leong Wai Hong finds that the Defendants proposition is correct and that Timor is no longer a director of the said company. This is subject to the pleaded case of the litigants. If it is shown that Timor has no locus standi, then this can be dealt with at trial.

[5] I will not have the trial derailed simply because the litigants wish to undertake these proceedings in stages. It is best that this claim be heard on its merits once and for all.

[6] I do not wish to prolong this suit further and directs that parties be ready for trial. This suit has been in this Court 's docket since June 2024 and should be disposed of within 9 months in accordance with the practice directions applicable to this case. I am also guided by the decision of Zakaria Yatim J in Bank Bumiputra (m) Bhd & Anor v. Lorrain Esme Osman & Another Case; [1987] 2 MLJ 633; [1987] CLJ (Rep) 472 where he held:

"The rules does not specify a time limit during which a party may apply to the Court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The Court , however, may allow an application to be made even alter the pleadings are closed. But such an application must be refused after the action has been set down for trial. See The Supreme Court Practice 1985, Vol 1, p 304.

Lorraine's present application to strike out the writ of summons in C138 must be refused as the case was set down for trial on two occasions. With regard to the similar application in C438, it is clear that application can be heard by this Court ."

[7] Also refer to Blue Valley Plantation Bhd v. Periasamy Kuppannan & Ors; [2010] 4 CLJ 753.

[8] The above position was also adopted by the Federal Court in Boo Are Ngor v. Chua Mee Liang; [2009] 6 MLJ 145; [2009] 6 CLJ 617. In this case, Zulkefli Makinudin FCJ held:

"[8] It is our view that O 18 r 19(1) of RHC 1980 does not specify a time limit during which a party may apply to the Court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The Court , however, may allow an application to be made even after the pleadings are closed. But such an application must be refused after the action has been set down for trial. (See the case of Bank Bumiputra (m) Bhd & Anor v. Lorrain Esme Osman & Another Case; [1987] 2 MLJ 633; [1987] CLJ (Rep) 472). Since the second suit has not been set down for trial, the defendant in the present case in our view can still apply to strike out the second suit on the ground of abuse of the process of the Court ."

[9] In view of the above I find that this application should be struck out without liberty to file afresh. The merits of Defendants defence will be dealt with at trial and all such issues may be raised