The principle of separate corporate personality is upheld; a holding company is not liable for the debts of its subsidiary without proven fraud or breach of duty.

Introduction

[1] By way of a summons in chambers, the appellant (TNB) filed an application to strike out the respondents' writ of summons and the statement of claim dated 30 September 2009 against the appellant (TNB) pursuant to O 18 r 19(1) (b) , (c) and/or (d) of the Rules of the High 1980 ("RHC") and/or the inherent jurisdiction of the Court.

[2] The appellant's (TNB's) application was heard by the learned judge of the High Court and his Lordship dismissed the appellant's (TNB's) application with costs. The appellant (TNB) was also ordered to pay the respondents' fixed costs of RM10,000. His Lordship too ordered an early trial.

[3] Aggrieved by that decision, the appellant (TNB) now appeals to this Court.

Striking Out Under O 18 r 19(1) Of The RHC

[4] The courts have a discretionary power to strike out an action summarily in the following instances:

(a) in plain and obvious cases (Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, 1993 MarsdenLR 99 ,);

(b) where the plaintiffs'/respondents' suit is an abuse of the process of the Court ( Boo Are Ngor v. Chua Mee Liang , [2009] 6 MLJ 145 , FC); and

(c) when the plaintiffs'/respondents' claim cannot be maintained in law and the Court possesses an inherent jurisdiction to prevent an abuse of its process (Raja Zainal Abidin bin Raja Haji Tachik & Ors v. British-American Life & General Insurance Bhd, 1993 MarsdenLR 1454 ,).

[5] The same legal principles on striking out can be seen in the following cases:

(a) Honan Plantations Sdn Bhd v. Kerajaan Negeri Johor & Anor, [1998] 2 MLJ 498, CA;

(b) Tan Ah Tong v. Perwira Affin Bank Bhd & Ors, [2002] 5 MLJ 49,;

(c) Oh, Thevasa v. Sia Hok Chai, [1992] 1 MLJ 215, HC;

(d) Pacific Internet Ltd v. Catcha.com Pte Ltd [2000] 3 SLR 26, HC; and

(e) Ernst & Young v. Maxbiz Corporation Bhd, [2009] 1 MLJ 206, CA.

[6] We are aware that an appellate Court will not interfere with the exercise of discretion by the judge in chambers unless it is clear that the judge's discretion was wrongly exercised. This simple proposition of law can be distilled from the following cases:

(a) Evans v. Bartlam [1937] 2 All ER 646, HL, at p 650, per Lord Atkin:

Appellate jurisdiction is always statutory; there is in the statute no restriction upon the jurisdiction of the Court of Appeal, and, while the appellate Court, in the exercise of its appellate power, is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet, if it sees that, on other grounds, the decision will result in injustice being done, it has both the power and the duty to remedy it.

(b) Ratnam v. Cumarasamy & Anor, [1965] 31 MLJ 228, PC, at p 229, per Lord Guest:

The principles upon which a Court will act in reviewing the discretion exercised by a lower Court are well settled. There is a presumption that the judge has rightly exercised his discr