When Can a Third Party Notice Be Struck Out in Malaysia?
In Malaysian civil litigation, third party notices play a crucial role in allowing defendants to bring in additional parties who may be liable for all or part of the plaintiff's claim. Governed primarily by the (previously under ), these notices help streamline proceedings and avoid multiplicity of suits. However, they are not issued lightly and can be challenged.
A common question arises: Under what circumstances can a third party notice be successfully struck out in Malaysia? Understanding these grounds is vital for defendants seeking to issue notices and third parties aiming to defend against them. This article explores the key legal principles, supported by case law, to provide clarity on when courts may strike out such notices. Note that this is general information and not specific legal advice—consult a qualified lawyer for your situation.
Legal Framework Governing Third Party Notices
Third party procedures in Malaysia are outlined in of the (ROC 2012). A defendant may issue a notice if they claim the third party is, or may be, liable to contribute or indemnify them. However, is typically required, and the notice must disclose a viable claim.
Courts exercise discretion to prevent . As emphasized in Punca Klasik Sdn Bhd v Liza James & Ors
MLJU 315
, a defendant must demonstrate a before leave is granted. Failure to do so is a primary ground for striking out. Similarly, r 8 allows applications to set aside or strike out notices that are improperly issued.
Key Circumstances for Striking Out a Third Party Notice
Malaysian courts have struck out third party notices under various scenarios. Below are the main grounds, drawn from established precedents.
1. Lack of or Proper Cause of Action
The cornerstone requirement is a against the third party. Without it, the notice lacks foundation and may be struck out as disclosing no reasonable cause of action.
In Punca Klasik Sdn Bhd v Liza James & Ors
MLJU 315
, the court stressed: the necessity of showing a before granting leave to issue a third party notice.
Additional cases reinforce this. Courts have struck out notices where claims were devoid of reasonable cause, as in
KHAIRUL MOHD NORDIN vs - High Court Malaya Alor Setar
YEE FATT MOTORS ENTERPRISE (SEGAMAT) SDN BHD vs & ORS (ENC.... - High Court Malaya Muar
. For instance, if the third party claim does not establish rights or benefits conferred, dismissal follows, perMessrs Tai Choi Yu & Co Advocates (suing as a firm and TAI CHOI YU as sole-proprietor) vs The & Ors
.2. , , or Abusive Claims
Notices deemed , , or an abuse of court process are vulnerable. In _MARSDENLR_2006_3102
, the court dismissed a claim against a third defendant, finding it lacked substantive merit.
Abuse arises when proceedings are premature or the third party was uninvolved in the original matter, as seen in
BIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
. One case noted proceedings were struck out as anYEE FATT MOTORS ENTERPRISE (SEGAMAT) SDN BHD vs & ORS (ENC.... - High Court Malaya Muar
. Similarly,KHAIRUL MOHD NORDIN vs - High Court Malaya Alor Setar
highlighted claims leading to striking out.3.
Significant delays in prosecuting the third party claim can justify striking out. _MARSDENLR_2006_2988
ruled that a significant delay in taking procedural steps justified striking out the action.
Courts balance fairness to all parties, ensuring proceedings do not languish indefinitely.
4. Non-Compliance with Procedural Requirements
Strict adherence to rules is mandatory. Failures such as improper service, defective affidavits, or non-compliance with court orders lead to striking out.
In _MARSDENLR__1810
, the absence of service of the third party notice was highlighted as a significant issue.
Further examples include failure to provide security for costs, as in
Messrs Tai Choi Yu & Co vs The & Ors
Messrs Tai Choi Yu & Co Advocates vs The & Ors
, where defective affidavits and non-compliance prompted striking out. InBIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
, an affidavit was struck out, and hence the facts in the Third Defendant's Affidavit in Support are deemed unrebutted.allows decrees based on unanswered notices, but only if properly served—non-compliance voids this 1996 0 Supreme(Bom) 495.
5. Lack of Jurisdiction or Improper Inclusion
If the court lacks jurisdiction over the third party or subject matter, the notice fails. Sunkyong International Inc v. Malaysian Rubber Development Corporation Bhd
3 CLJ 1531
invalidated service on a foreign defendant, respecting sovereignty.
Claims not properly included in original proceedings are struck out, per
BACHO KADA vs BABYANA BARU - High Court Sabah & Sarawak Kota Kinabalu
, where failure to include a third-party claim in the initial suit was a ground for striking out.In
, the court invoked to add a party, implying improper notices risk reversal.
6. Other Grounds: Premature Actions and Defects
Premature proceedings or those incompatible with ROC 2012, r 8, are struck out
. Failure to demonstrate third party involvement, as in
BIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
where the Third Defendant was not involved in the Plaintiff's employment, supports dismissal.Integrating Third Party Claims Effectively
To avoid striking out, defendants should:- Establish a clear with supporting evidence.- Ensure timely service and compliance with all procedural steps.- Avoid introducing claims that could have been part of the original action.- Provide security for costs if ordered.
Courts aim to prevent abuse, as reiterated across cases like
BIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
andMessrs Tai Choi Yu & Co Advocates (suing as a firm and TAI CHOI YU as sole-proprietor) vs The & Ors
.Conclusion and Key Takeaways
A third party notice in Malaysia may be successfully struck out for lack of , or claims, inordinate delay, procedural non-compliance, lack of jurisdiction, or as an . Key references include Punca Klasik Sdn Bhd
MLJU 315
, Sunkyong International
3 CLJ 1531
, and modern decisions like
KHAIRUL MOHD NORDIN vs - High Court Malaya Alor Setar
YEE FATT MOTORS ENTERPRISE (SEGAMAT) SDN BHD vs & ORS (ENC.... - High Court Malaya Muar
BACHO KADA vs BABYANA BARU - High Court Sabah & Sarawak Kota Kinabalu
Key Takeaways:- Always demonstrate a viable claim before issuing.- Adhere strictly to ROC 2012 timelines and service rules.- Courts prioritize efficiency and fairness.
Legal practitioners must navigate these pitfalls carefully. For tailored advice, engage a Malaysian litigation specialist. This overview draws from reported judgments to inform, but outcomes depend on specific facts.
References:-
KHAIRUL MOHD NORDIN vs - High Court Malaya Alor Setar
YEE FATT MOTORS ENTERPRISE (SEGAMAT) SDN BHD vs & ORS (ENC.... - High Court Malaya Muar
BIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
BACHO KADA vs BABYANA BARU - High Court Sabah & Sarawak Kota Kinabalu
BIMAL PILLAI vs BRB MALAYSIA SDN BHD & ORS - High Court Malaya Georgetown
Messrs Tai Choi Yu & Co vs The & Ors
Messrs Tai Choi Yu & Co Advocates vs The & Ors
Messrs Tai Choi Yu & Co Advocates (suing as a firm and TAI CHOI YU as sole-proprietor) vs The & Ors
#MalaysiaLaw, #ThirdPartyNotice, #LegalGuide
