Preliminary issues under Rules of Court can lead to dismissal if time-barred or previously adjudicated.

Azhahari Kamal Ramli JC:

[1] This is an application by the 1st to 7th Defendants under O 33 r 2, 3(5) and 5 of the Rules of for the determination of 3 questions or issues raised in the pleadings to be tried on a preliminary issues.

The Law

[2] Order 33 r 2 of the Rules of provides for a speedy and expeditious way, in appropriate cases of disposing of a cause or matter before the Court because the determination of the preliminary issue is likely to have the effect of substantially disposed of the matter before the Court (Langkawi R & D Academy Sdn Bhd v. Ketua Setiausaha Kementerian Pertahanan Malaysia, ). Such disposal of the issues or question posed by the parties, if decided in their favour would bring an end to the suit which will eventually save costs and time, which would otherwise be expanded to deal with other issue of the case (Tan Ching Chong & Ors v. Ekabina Sdn Bhd & Ors; ; ). Order 33 in my opinion compliment the other provision in the Rule for speedy disposal of cases such as under O 14, 14A and 18 of Rules of .

[3] In this case I am of the opinion that the Defendant's application herein is in no way defying the direction issued by the Federal Court namely that this matter be proceeded for trial. In fact O 33 allows the Court to determine any preliminary issues of law or of law or partly of fact and partly of law to be tried either before, at or after the trial of the cause or matter. Order 33, as submitted by learned counsel for the Defendant is provided for under the heading chapter mode of trial in the Rules of Court which simply means that this application form part of the trial process. The primary consideration should be whether the application would result in a substantial saving of time and expenditure (Krishan Rajan N Krishan v. Bank Negara Malaysia, [2003] 1 MLJ 149, Huang Ee Hoe & Anor v. Tiong Thai King & Ors; [1991] 2 MLJ 51; [1991] 2 CLJ (Dep) 745). Hence the fact that the Defendant had also proceeded under O 18 r 19 previously should not preclude them from applying under O 33.

[4] It must also be noted that the question posed by the applicant herein are actually pleaded in their statement of defence. As such the said issues/question of law referred to in this application would also form issues to be tried at the trial of this matter. Both Plaintiff and Defendant need not consent to this application.

I) Whether The Action Of The Plaintiff Against The Defendant Premised On "Tort Of Abuse Of The Process Of The Court Process" And "Conspiracy To Defraud" And Upon The Facts Pleaded In Para 17 And 18 Of The Statement Of Claim (A) Is Statute Based Pursuant To Item 20 Of The Schedule To Sabah Limitation Ordinance .

[5] Item 20 of Sabah Limitation Ordinance set the limitation period for action for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not herein specially provided for and include all suits for compensation for all acts and omissions amounting to torts which are not provided for elsewhere.

[6] On the other hand the Plaintiff contended that limitation period applicable to the present case should be under item 97 ie 6 years citing the case of Asia General Equipment and Supply Sdn Bhd & Ors v. Mohd Sari Bin Datuk OKK Hj Nuar & Co, [2012] 3 MLJ 49.

[7] In this respect, it is pertinent to state here that the Plaintiff's cause of action herein is premise on tort of abuse of process or tort of company to defraud.

[8] This allegation relates to the event that took place leading to the filing of the OS-T(24)-65-2015 whereby the 5th Defendant seek for a declaration that the