JUDGMENT

Hayatul Akmal Abdul Aziz J:

(Enclosure 193/L.193)

Introduction

[1] The Second Defendant (D2) applied in L.193 to strike out:

(1) The First Defendant's (D1) counterclaim dated 25 October 2021 (L.126) against D2,

(2) Under O 18 r 19(1)(a) and/or (b) and/or (d) of the Rules of 2012 (RC 2012) and/or under the inherent jurisdiction of this Court and other related prayers.

[2] On 16 December 2024:

(1) After perusing the cause papers and hearing the submissions of the respective counsels, I allowed L.193. Costs of RM20,000.00, was ordered to be paid to D2 by D1 within 30 days.

(3) Dissatisfied, D1 filed this appeal, and my reasons are as follows:

Salient Facts

[3] The parties and other individuals filed several suits over their alleged claims to the estate of Madam Sam Poh San @ Shum Poh Sum.

[3.1] The crux of the dispute between them is the claim over who gets to control and share in the Compensation Sum of RM27,509,875.55 awarded by the Land Administrator for the compulsory acquisition of the property belonging to the estate of Madam Sam Poh San @ Shum Poh Sum, who at the time of her passing held ¾ undivided shares, while another holds the balance ¼ undivided shares. The Compensation Sum is being held upon trust with Amanah Raya Berhad (D3: nominal defendant).

The Backdrop

[3.2] The parties have filed notices to use affidavits filed in these suits and the relevant competing suits/cases are as follows (briefly):

(i) OS No: S-31NCVC-96-01/2013 (OS, 2013).

On 16 June 2013, D2 was appointed as the Administrator of the estate of his great-grandmother, Madam Sam Poh San @ Shum Poh Sum, in Kuala Lumpur High Court , OS No: S-31NCVC-96-01/2013 [OS, 2013 - (exh AY-1, L.197)].

(ii) Civil Suit No: 22NCVC-676-12/2015 (Suit 676, 2015).

(a) On 15 December 2015, one Yap Ngen Sang (YNS), as the plaintiff, sought a declaration against the defendants, (1) D2 and (2) Leong Theam Fook and to revoke the Letters of Administration granted to D2 or YSN be added as a beneficiary.

(b) On 4 December 2017, the Kuala Lumpur High Court found in favour of YNS, granted the judgment sought, and ordered the amendment of the LA to include YSN as a beneficiary in the estate of the late Madam Sam Poh San @ Shum Poh Sum, after declaring that YSN is a lawful beneficiary [the said impugned order - (exh AY-8, L.197)].

(iii) Court of Appeal: (W-02 (NCvC)(W)-2558-12/2017 (2558 2017-2018)

On 13 December 2017, D2, aggrieved by that impugned HC Order, filed an appeal to the Court of Appeal, but it was dismissed, affirming the High Court order in suit 676, 2015 (exh AY-10, L.197)

(iv) OS No: WA-32NCVC-1572-08/2019 (OS, 2019).

After YNS passed away, Yap Chee Siang (the present plaintiff, who is also YNS's son) was appointed executor under the High Court 's Grant of probate.

(v) WA-22NCvC-45-01/2020 (Suit 45, 2020)

(a) On 21 January 2020, D2 filed a suit seeking to impeach the impugned HC order on the grounds of fraud.

(b) After a full trial, I allowed D2's claim, and the impugned HC order was impeached and set aside (exh AY-13, L.197).

(c) No appeal was filed against this decision, which renders it final and conclusive between the parties.

(vi) WA-22NCvC-805-10/2019 (Suit 805, 2019), the present suit

(a) The plaintiff applied for an order to remove D2 as the estate administrator of the late Madam Sam Poh San @ Shum Poh Sum.

(b) D1 (Ng Bak Hing) had also similarly filed a claim and counterclaim against the plaintiff and D2 for an order that the LA Probate obtained by D1 in suit 32NCvC-1797-12/2014 dated 12 February 2015 is maintained and other related orders.

[3.3] Part A - Before the full trial of Suit 45, 2020

(1) On 3 November 2023, the parties agreed that the present case (suit 805, 2019) will only proceed after the Suit 45, 2020 trial is completed.

(2) The full trial was eventually completed on 29 May 2024, and an order was granted by this Court favouring D2 in impeaching the impugned HC Order on the grounds of fraud.

[3.4] Part B - After the full trial of Suit 45, 2020

(1) The counsel