Mohd Radzi Harun J:

GROUNDSIN

TRODUCTION

[1]This is an appeal by the Plaintiffs against the decision of this Court which had dismissed their application pursuant to O.18 r. 19(1)(a)(b)(c)(d) Rules of Court 2012 ("ROC 2012") for the Defendant's counterclaim against the Plaintiffs be struck out.

[2]Below are my grounds in coming to such decision.

BACKGROUND

[3]The Plaintiffs' causes of action against the Defendant include the following:

(i)infringement of the 1^st Plaintiff's registered trademarks no. 06005843 for the mark "Verve" in Class 37, no. 06005844 for the mark "Verve" in Class 43, and no. 2011014519 for the mark "Verve" in Class 37;

(ii)passing off products or services not originating from or connected to the 1^st Plaintiff as a product or services originating from or connected to the Plaintiffs;

(iii)using the Plaintiffs' works as set out in Schedule 1 to the Statement of Claim.

[4]The Defendant's defence is mainly premised on his contention that there was express or implied consent by the Plaintiffs, for the sharing, dissemination and utilisation of the 1^st Plaintiff's trademark and the Plaintiffs' works, on the internet including on social media. The Defendant further pleaded that the Plaintiffs had instituted their claims against the Defendant as a vendetta against the Defendant for the Defendant's works to the benefit of the Verve Suites Mont' Kiara Management Corporation ("VSMKMC") and its residents and proprietors which include the Defendant's involvement in earlier separate court proceedings involving the VSMKMC against the 1^st Plaintiff and its related companies, and informing the residents and proprietors of the Verve Suites Moint' Kiara of the non-performance and /or poor performance of the managing agent, Bukit Kiara Property Services Sdn Bhd, a related company with the 1^st and 2^nd Plaintiffs, in the management of the Verve Suites Mont' Kiara.

[5]The Defendant pleaded that the Plaintiffs' Statement of Claim is in bad faith, malicious and with ulterior motive of damaging the Defendant's business and reputation rather than furthering any legitimate interest of the Plaintiffs. Consequently, the Defendant counter-claims against the Plaintiffs for malicious litigation/prosecution and/or abuse of process of the Court.

THE APPLICATION

[6]The Plaintiffs premised their application mainly on the ground that the Defendant's counter-claim on malicious litigation/prosecution and/or tort of abuse of process is obviously unsustainable as those causes of action are not recognised and should not be recognised by this Court.

Tort of malicious prosecution

[7]Relying on Benalec Holdings Bhd & 2 Ors v Datuk LeawAh Chye & Anor [2017] 1 LNS 1698 and Yick Hoe Ferrous Steel Sdn Bhd v CTMCC Engineering (M) Sdn Bhd , the Plaintiffs' counsel submitted that the tort of malicious prosecution cannot be pursued in the present civil proceeding.

[8]For a claim of tort of malicious prosecution to be successful, the Plaintiffs argued that the Defendant must prove that the Plaintiffs' present action against the Defendant has commenced and determined in favour of the Defendant. As the proceeding against the Defendant is still on-going and has not be fully litigated, and no decision has been entered in favour of the Defendant, the Plaintiffs submitted that the Defendant's application counter-claim is premature, obviously unsustainable and must be struck out: See Gasing Heights Sdn Bhd v Aloyah bte Abdul Rahman & Ors , Yick Hoe Ferrous Steel Sdn Bhd (supra).

[9]The Plaintiffs' counsel further submitted that for the Defendant's counter-claim to be allowed, the Defendant shall prove that there is an absence of reasonable cause of action on the part of the Plaintiffs. The Plaintiffs argued that they had pleaded reasonable cause of action against the Defendant pertaining to the Defendant's infringement of the 1^st Plaintiff's registered trademark and the use of the Plaintiffs' works by the Defendant without the Plaintiffs' consent and permission, and the Defendant's a