A claim should not be struck out unless it is plainly and obviously unsustainable; claims raising a question fit to be tried should proceed.

[1]This is the defendant’s Notice of Application in enclosure 46 under Order 18 rule 19 & Order 92 rule 4 of the Rules of Court 2012

(a)That the Writ and Statement of Claim [enclosure 1] filed by the Plaintiff on 27th July 2015 to be struck out; and

(b)That the costs of this application be provided for.

The grounds of this application are:-

(i)That the said Statement of Claim show no reasonable cause of action, as the case may be; or

(ii)The Plaintiff’s claim is scandalous, frivolous or vexatious; and

(iii)Other grounds are as stated in the Affidavit of ABANG ABDUL RAHMAN BIN ABANG NAIM affirmed on the 23rd day of May, 2017 and filed in support of the said application therein (enclosure 47).

The Law on Summary Striking Out/Order 18 rule 19 ROC 2012

In MOHAMMED ARIFF ABDUL KHALID & Ors v DIRECTOR GENERAL OF IMMIGRATION DEPARTMENT, MALAYSIA & Ors [[2017] 1 LNS 532] (COA), the Court held:

“[16] As the present appeal concerned the striking out of the plaintiffs’ claim, we would start off by reminding ourselves of the principles enunciated in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd

(i)that it is only in plain and obviously unsustainable cases that recourse should be had to the summary process under O. 18 r. 19(1) of the RHC/Rules of Court

(ii)that 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;

(iii)that 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;

(iv)that a striking out order should not be made if there is an issue of fact that is capable of resolution only after taking viva voce evidence; and

(v)that the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defence raised are not arguable.

(see for example Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor

In LIFOMAX WOODBUILD SDN BHD v NG YEE TECK [[2017] 1 LNS 528] (COA), the COA stated:

[17] It is trite law that a pleading should only be struck out if it is shown that it is on the face of it ‘obviously unsustainable’. It is a summary power to be sparingly exercised only in cases where it is conspicuously clear that the claim on its face is obviously unsustainable (Re: Pet Far Eastern (M) Sdn Berhad v. Tay Young Huat & Others Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd

“The principle upon which the court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) of the Rules of the High Court 1980are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it obviously unsustainable.”

So much on the law on summary striking out. I will now deal with the application proper.

The Respective Parties’ Case

1.In enclosure 47, the deponent avers as follows:

(1)The defendant is not indebted to the plaintiff in the sum of RM454,414.90 as the defendant had already on the 19.10.2012 issued a payment vide HSBC cheque No 07067 in the sum of RM1,356,316.04 to the plaintiff as full and final settlement payment owing to the plaintiff. The defendant had annexed the said covering letter with the said HSBC cheque in the affidavit in support and marked as “AB-1”.

(2)The defendant averred that the plaintiff’s representative had on 19.10.2012 duly acknowledged receipt of the said payment with the terms expressly stated in the covering letter, i.e., payment was made being the final and full payment owing to the plaintiff by signing and returning the same to the defendant thereafter.

(3)The defendant never requested any further works nor services from the plaintiff after the 19.10.2012 after the final payment was made. Thus,