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2022 MarsdenLR 767
HIGH COURT (SHAH ALAM)
JULIE LACK, JC
Hj Ahmad Kamal bin Zakaria & Ors – Plaintiff
Versus
Perak Integrated Network Services Sdn Bhd – Defendant
GUAMAN SIVIL NO BA-23NCVC-42-09/2019
Leong Kwong Wah (Vincent Lim Seng and Steven Tan Chee Qian with him) (Dennis Nik & Wong) for the plaintiff.
Razlan Hadri Zulkifli (Chai Tze Jing with him) (Gan, Ho & Razlan Hadri) for the defendant.
The tort of abuse of process requires proof of initiation, collateral purpose, and resultant damage, with awards for reputational, emotional, and financial harm recognized.
Headnote:(A) Tort of Abuse of Process - Elements required to establish the tort include initiation of the process, a collateral purpose, and damage suffered. High Court recognized the tort and held that the Defendant's suit was motivated by collateral purposes rather than genuine legal redress. (Paras 45-47, 84-86)
(B) Elements of Proof - Plaintiffs must demonstrate all required elements of the tort to succeed, including that the Defendant's actions constituted an abuse of judicial process and inflicted emotional and financial harm. (Paras 84-112)
(C) Damages - The Court awarded damages for reputational harm, anxiety, and distress suffered by the Plaintiffs due to the Defendant's abuse of process. (Paras 93-115)
Facts of the case:
Plaintiffs claimed general and special damages for the tort of abuse of process against the Defendant, who initiated a previous suit based on allegations of breach of fiduciary duty, characterized as retaliatory. The previous claim was dismissed on abuse of process grounds. (Paras 12-21, 33, 107)
Findings of Court:
The Court found that the Defendant's suit was an abuse of process without a genuine grievance against the Plaintiffs, awarding significant damages and costs. (Paras 43-115)
Issues: Whether the Defendant’s filing of the initial suit constituted an abuse of process, and if the Plaintiffs suffered damage as a result. (Paras 47-68)
Ratio Decidendi: The court established that the Defendant's actions were motivated by retaliation rather than legitimate legal concerns, validating the Plaintiffs' claims of abuse of process. (Paras 45-50, 57-62, 84)
Result: Plaintiffs succeeded in their claim and were awarded RM100,000 each plus RM60,000 for the third Plaintiff for reputational damage and costs. (Paras 113-115)
| Table of Content |
|---|
| 1. judgment issued after trial (Para 1 , 2 , 3) |
| 2. identification of parties involved in the case (Para 4 , 5 , 6 , 7 , 8 , 9) |
| 3. background of the plaintiffs' claims (Para 10 , 11 , 12 , 13 , 14 , 15) |
| 4. allegations of abuse of process asserted by plaintiffs (Para 16 , 17 , 18 , 19 , 20) |
| 5. continuation of abuse of process through appeals (Para 21 , 22 , 23 , 24 , 25) |
| 6. testimonies regarding the plaintiffs' experiences (Para 26 , 27 , 28 , 29 , 31 , 32) |
| 7. conclusion on witness testimony acceptance (Para 36 , 37) |
| 8. defendant's choice to submit no case to answer (Para 39 , 40) |
| 9. findings of the court regarding the abuse of process (Para 43 , 44) |
| 10. legal principles surrounding the tort of abuse of process (Para 45 , 46 , 47 , 48) |
| 11. assessment of damages and their justification (Para 93 , 94 , 95 , 102) |
| 12. conclusion and order in favor of plaintiffs (Para 114 , 115) |
Julie Lack JC:
GROUNDS OF JUDGMENT
[1]This is the judgement of the Court after a full trial.
[2]The Plaintiff’s claim for general and special damages arising from the tort of abuse of process was allowed by this Court on 19.11.2021.
[3]Dissatisfied with the said decision, the Defendant has appealed against the entirety of that decision.
Parties
[4]The Plaintiffs in this case are :
1)Hj Ahmad Kamal b Zakaria (1st Plaintiff);
2)Azrina Mohamad Aziz (3rd Plaintiff);
3)Bunga Raya ICT Sdn Bhd (5th Plaintiff); and
4)Urban Domain Sdn Bhd (6th Plaintiff).
[5]The 2nd and 4th Plaintiffs have withdrawn their claims against the Defendant leaving the above said Plaintiffs to continue on to pursue their claim.
[6]The 1st Plaintiff is the Chief Executive Officer of Bunga Raya ICT Sdn Bhd (‘Bunga Raya’), the 5th Plaintiff.
[7]The 1st Plaintiff is at the same time the director of Urban Domain Sdn Bhd (‘Urban Domain’), the 6th Plaintiff.
[8]The 3rd Plaintiff is the other director of Urban Domain. She is also the financial manager of the Defendant and is in charge of its bookkeeping and accounting functions.
[9]The Defendant (interchangeably referred to as ‘PINS’ hereafter) is a private limited company incorporated in Malaysia and has its registered office in Sungai Buloh, Selangor.
[10]Bunga Raya, Urban Domain and PINS were previously parties to a joint venture agreement dated 22.2.2006 signed between Bunga Raya and PINS to carry out Concession Works and License Works in the State of Perak.
[11]At the commencement of the trial, counsel for the Plaintiffs informed the court they were withdrawing the claim for malicious prosecution and wished to proceed only with the tort of abuse of court process against PINS.
Background/Plaintiffs’ Pleaded Case
[12]The Plaintiffs’ pleaded case is expounded in the Statement of Claim filed on 12.9.2019.
[13]It can safely be said that the Plaintiff’s claim emanated from an earlier High Court Civil Suit No. 22NCVC-154-04/2014 (Suit No. 154) tried in the Kuala Lumpur High Court. The Plaintiffs have referred to and relied on the High Court Order dated 14.7.2017 and the Grounds of Judgment (GOJ) dated 14.7.2017 in Suit No. 154 for its full terms and effect to found the instant civil suit against PINS.
[14]Suit No. 154 was initiated by PINS against the Plaintiffs for breach of the above mentioned joint venture agreement dated 22.2.2006 as well as for breach of fiduciary duties.
[15]Reference must also be made to another Kuala Lumpur High Court case i.e. Civil Suit No. 22NCC-1041-07/2012 (Suit No. 1041) which was a derivative action initiated by Urban Domain alleging breaches of contract on the part of PINS and one Dato’ Seri Dr Abdullah Fadzil Che Wan. The claim was allowed in favour of Urban Domain on 26.9.2013.
[16]It is the Plaintiffs case that on 2.4.2014 PINS had maliciously and without reasonable and probable cause instituted Suit No. 154 against the Plaintiffs based on breach of fiduciary duties.
[17]Suit No. 154 was set down for trial over 11 days before the High Court Judge Justice S Nantha Balan (as he then was) and upon hearing oral evidence from all the 7 witn
