JUDGMENT

Noor Hisham Ismail J:

(Enclosure 13)

Introduction

[1] Before this court is the Defendants' ("D's") Notice of Application (encl 13) under O 18 r 19(1)(b) and (d) of the Rules of 2012 ("ROC 2012") to strike out the Plaintiff's Originating Summons ("OS") (Enclosure 1), on the grounds that the OS is scandalous, frivolous or vexatious or otherwise it is an abuse of the process of the court.

[2] Apart from the striking out, there is also an alternative prayer for the OS to be stayed pending the disposal of another pending Writ action between the parties namely JA-22NCC-37-05/2023.

[3] This court, after hearing full arguments by counsel for both parties, had dismissed encl 13 with costs.

[4] The Plaintiff has since appealed against the said decision.

[5] The followings are thus this court's Grounds of Judgment for the said decision.

The Cause Papers

[6] For the purpose of this application, the cause papers referred to are as follows:

(a) Originating Summons ("Derivative Action")

(i) Originating Summons ("OS") - Enclosure 1

(ii) Plaintiff's Affidavit in Support for the OS ("AIS") - Enclosure 6

(iii) Defendants' Affidavit in Reply ("AIR") - Enclosure 11

(iv) Plaintiff's Affidavit in Reply ("P's AIR") - Enclosure 12

(b) Notice of Application ("Striking Out Application")

(i) Notice of Application by the Defendants ("NOA") - Enclosure 13

(ii) Defendants' Affidavit in Support ("D's AIS")- Enclosure 14

(iii) Plaintiff's Affidavit in Reply ("P's AIR") - Enclosure 15

(iv) Defendants' Affidavit in Reply ("D's AIR") - Enclosure 16

(v) Plaintiff's Further Affidavit in Reply ("P's Further AIR") - Enclosure 17

(vi) Defendants' Further Affidavit in Reply ("D's Further AIR") - Enclosure 18

Salient Facts

[7] Prior to this OS, the Plaintiff and the Defendants have two (2) other suits between them that are still pending as of this date.

[8] The first suit is Writ Summons No. JA-22NCC-67-10/2023 (converted from Originating Summons JA-24NCC-11-04/2023) filed by P against the D's, which is an action for minority oppression under s 346 of the Companies Act 2016 ("Suit 67").

[9] The second suit is Writ Summons No. JA-22NCC-37-05/2023 filed by the D's against the P claiming that P is only a trustee holding to 250,000.00 of D1's shares ("Suit 37").

[10] Both Suit 67 and Suit 37 have been consolidated and are to be heard together.

[11] This present suit on the other hand is a derivative action by P against D's.

D's Basis For Filing Enclosure 13

[12] The crux of D's contentions in filing encl 13 is as follows:

(a) P lacks the capacity to file this OS due to his holding of shares in D1 which is a subject of determination in Suit 37. Should the court allow Suit 37 in favour of D2 and D3, this action will fall as P has no locus as a 'complainant' to launch a derivative action.

(b) This OS is pre-mature since the P did not exhaust D1's internal procedure. If P had carried himself rightly as the registered and beneficial shareholder of 250,000 units in D1 (despite the filing of Suit 37), P should have called for a meeting pursuant to ss 310 and 311 CA 2016, prior to filing of this OS.

(c) There are duplicity of facts and claims, both in Suit 67 and this OS which P has filed on his 'capacity' as a shareholder.

(d) The OS is an abuse of process for being filed with collateral purpose.

The Law Of Striking Out

[13] Order 18 r 19(1) ROC 2012 provides:

(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 anything in any pleading or in the endorsement, on the ground that:

(a) it discloses no reasonable cause of action or defence, as the case may be;

(b) it is scandalous, frivolous or vexatious;

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court,

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under subparagraph (1)(a).

(3