JUDGMENT

Kenneth St James J:

Prelusion

[1] The Plaintiff (P) sued the Defendants for fraud. There are six of them.

[2] The 4th Defendant: Aligan Holdings Sdn Bhd (D4Co) applies to strike out the suit under O 18 r 19(1) of the Rules of 2012 (Rules of ).

[3] Should P's suit against D4Co be summarily struck out?

The Limbs Of Order 18 Rule 19(1) That D4 Relies On

[4] D4Co's application to strike out the suit is encl 22. In Encl 22, D4Co states that it relies on these limbs of O 18 r 19(1):

(1) limb (a): that P's suit (Writ and Statement of Claim (SOC)) discloses no reasonable cause of action against D4Co;

(2) limb (b): that P's suit is scandalous, frivolous or vexatious;

(3) limb (d): that P's suit is an abuse of the process of the Court .

The Law On Striking Out

[5] It is well established that so long as P's pleadings disclose a reasonable cause of action, the suit should proceed to trial: (1) Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969 (SC); (2) Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor; [2016] 3 MLJ 1; [2016] 3 CLJ 1; [2016] 2 AMR 795 (FC).

[6] Further, in Tan Wei Hong & Ors v. Malaysia Airlines Berhad; [2019] 1 MLJ 59; [2018] 9 CLJ 425; [2018] AMR 529, the Federal Court propounds the following principles to follow when considering an application to strike out:

[17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: Tan Wei Hong & Ors v. Malaysia Airlines Berhad; [2019] 1 MLJ 59; at 68 [2018] 9 CLJ 425; [2018] AMR 529

(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

(b) 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;

(c) 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; ...

[18] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors; [2012] 1 MLJ 473; [2012] 1 CLJ 75, had adopted the well-settled principle of striking out in the following passage:

A striking out order ... should also not be made if there is an issue of fact that is capable of resolution only after taking viva voce evidence during trial (see: Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor; [1997] 2 MLJ 565; [1997] 3 CLJ 305; [1997] 3 AMR 2458 (FC))....

[20] The established rule on this point is that the Court should not examine the evidence in summary proceedings in such a way as to amount to conducting a trial on the conflicting affidavit evidence ...

[64] We are also of the view that in dealing with an application for striking out, the Court must exercise great care and caution, bearing in mind that the Court must not drive away any litigant however weak his case may be from the seat of justice (see: Lee Nyan Choi v. Voon Noon; [1979] 2 MLJ 28)...

[Emphases Are Mine]

The Pertinent Facts Pleaded By P

[7] These are the pertinent facts that P pleads in its Amended SOC.

[8] Sime Darby Brunsfield Resort Sdn Bhd owns the Senada project. The Senada project is a service-residence, office and shopping mall project in Bukit Kiara, Kuala Lumpur.

[9] The 5th Defendant: Tulus Construction Sdn Bhd (D5Co) is the main contractor for the Senada project. D5Co was previously known as Brunsfield Construction Sdn Bhd.

[10] Sime Darby Brunsfield Resort needed a nominated subcontractor to supply and install kitchen cabinets in the Senada project. P negotiated to be appointed for the job. The principal person who negotiated with P was the 1st Defendant: Lim (D1). D1 represented to P that he is the deputy general manager of D5Co. D1 represented that he was in charge of appointing the subcontractor for the kitchen cabinet job.

[11] After the terms were finalised, the eventual letter of intent (to appoint P for the job