Gopal Sri Ram JCA

(delivering judgment of the court)

[1]This is the judgment of the court.

[2]This appeal is directed against the order of High Court granting the respondents' (defendants in the court below) application to strike out the appellant's pleading as wanting a cause of action within the framework of the RHCO 18 r 19.

[3]The appellant's main arguments before us are two-fold. Firstly, it has been submitted this morning that the action pleaded in the appellant's statement of claim is a derivative action brought within the exception recognised by the rule in Foss v Harbottle (1843) 2 Hare 461. The second limb of the appellant's case rests on the submission that even if the written pleading is defective the learned judge ought to have exercised his power of amendment granted to him by the terms of O 18 r 19(1). See Kuala Lumpur Finance Bhd v KGV & Associates Sdn Bhd

[4]Taking the first submission, it is quite plain from a reading of the appellant's pleaded case that it is not a derivative action in it true sense of that term. In this context we need no more than to refer to the passage quoted by the learned judge in the court below in his judgment:

In Foss v Harbottle (1843) 67 ER