Searching Case Laws & Precedent on Legal Query!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query!
Scanned Judgements…!
Multiple applications by the same party in the same action - It is common for a party to file more than one striking out application in a single case, often on different grounds (e.g., lack of cause of action, limitation, or procedural issues). Courts emphasize that each application must be properly elected and maintained as an alternative, and that the party must choose which application to proceed with if they are in the same summons-in-chambers. For instance, even though the applications are in the alternative (which incidentally means one or the other), the party applying has to elect as to which application he wishes to proceed on ["ELANG WAH SDN BHD vs PERBADANAN PEMBANGUNAN PULAU PINANG - High Court"].
Main points and insights:
Sequential or multiple applications can be dismissed if they are found to be an abuse of process or if the applicant fails to properly elect between them ["ELANG WAH SDN BHD vs PERBADANAN PEMBANGUNAN PULAU PINANG - High Court"].
Analysis and conclusion:
In litigation, parties often seek to strike out pleadings that they believe are unsustainable, frivolous, or abusive. But what happens when the same party wants to file a second strike-out application in the same action? This question—two striking out application by the same party in a same action—arises frequently in Malaysian courts, particularly under Order 18 Rule 19 of the Rules of Court 2012 (ROC). While courts emphasize procedural efficiency, they do not impose a blanket ban on successive applications, provided new grounds or facts are advanced. This post explores the jurisdictional considerations, key doctrines like res judicata and estoppel, and practical insights from case law. Note: This is general information based on precedents and not specific legal advice; consult a qualified lawyer for your case. ALLIED CAPITAL SDN BHD vs MOHD LATIFF SHAH MOHD ANOTHER APPLICATION - 2004 MarsdenLR 1166RANJEET SINGH SIDHU & ANOR vs ZAVARCO PLC & ANOR (ENCLS 90 & 94) - 2017 MarsdenLR 802YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857SRI ASTAKA SDN BHD vs CHONG LE CHIN (ENCLS 2 33 35 37 42 & 46) - 2021 MarsdenLR 1201
Malaysian courts have consistently held that there is no legal prohibition against a party filing multiple strike-out applications in the same proceedings. A landmark illustration comes from winding-up proceedings in Tan Heng Chew & Ors v. Tan Kim Hor & Ors2009 2 CLJ 234, where the Court of Appeal implicitly endorsed a second application filed three years after the first. The initial application, lodged four months post-petition, argued abuse of process and lack of just and equitable grounds. The second targeted failure to file a verifying affidavit under Rule 26 of the Companies (Winding Up) Rules 1972. Notably, the appellate court made no adverse observations, signaling approval. RANJEET SINGH SIDHU & ANOR vs ZAVARCO PLC & ANOR (ENCLS 90 & 94) - 2017 MarsdenLR 802
This position extends beyond winding-up cases. In related proceedings, no authority barred a second strike-out of the Statement of Claim, with courts stressing factual distinctions between applications as pivotal. SRI ASTAKA SDN BHD vs CHONG LE CHIN (ENCLS 2 33 35 37 42 & 46) - 2021 MarsdenLR 1201 As long as the subsequent application introduces fresh grounds, it remains viable, promoting flexibility without encouraging abuse.
General strike-out principles under Order 18 r 19 reinforce this. The Federal Court in Malaysia Airlines Berhad2019 1 MLJ 59 outlined tests: a claim should not be struck out unless it is plainly unsustainable, and plaintiffs must get their day in court. SIGNATURE CABINET SDN BHD vs LIM KENG HENG & ORS Similarly, courts caution against minute examination of facts at this summary stage, reserving merits for trial. GUNALAN SAGARAN vs MOHD NASRI ABDUL RAHIM & ORSHONG SHENG ENGINEERING SDN BHD vs MULTILINK RESOURCES SDN BHDSURIA ACTIVE RESOURCES SDN BHD vs PENANG REGIONAL DEVELOPMENT AUTHORITY (PERDA) & ORS
A common challenge to successive applications is res judicata or estoppel, but these doctrines do not automatically apply if issues or facts differ materially. In Sri Astaka Sdn Bhd v. Chong Le Chin2020 MLRHU 1186 (upheld on appeal), the court permitted a second strike-out, citing Ranjeet Singh Sidhu & Anor v. Zavarco Plc & Ors2017 MLRHU 1519. Referencing Tan Heng Chew (supra), it confirmed no prohibition on multiples when grounds vary. YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857RANJEET SINGH SIDHU & ANOR vs ZAVARCO PLC & ANOR (ENCLS 90 & 94) - 2017 MarsdenLR 802
Estoppel fails where new facts emerge post-first application. In Zavarco Plc, defendants uncovered plaintiffs' shareholding details only afterward, making prior rulings irrelevant. SRI ASTAKA SDN BHD vs CHONG LE CHIN (ENCLS 2 33 35 37 42 & 46) - 2021 MarsdenLR 1201YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857 This aligns with broader res judicata principles: it bars re-litigation of decided issues or those that could have been raised, but not distinct claims. One case struck out a claim as frivolous under Order 18 r 19(1)(b) and (d) due to prior proceedings on similar DIBS issues, emphasizing finality and no piecemeal litigation. TWIN PAVILION DEVELOPMENT SDN BHD vs TEO CHOON MING & ORS
However, res judicata per rem judicatum includes cause of action estoppel and issue estoppel, applied narrowly in strike-out contexts. KHALEEG MARKETING SDN BHD vs SHAOXING COUNTY BAIMEI TRADE CO LTD Courts distinguish: if the second application rests on unchanged facts, it risks dismissal; otherwise, it proceeds.
Jurisdiction often trumps merits in successive applications. Courts prioritize subsidiary jurisdictional challenges, hearing them first to affirm authority. Parties may agree to bundle applications for efficiency, but judges retain discretion to sequence hearings—jurisdiction upfront. ALLIED CAPITAL SDN BHD vs MOHD LATIFF SHAH MOHD ANOTHER APPLICATION - 2004 MarsdenLR 1166
No prior unsuccessful strike-out creates a jurisdictional bar; fresh grounds trigger de novo assessment, absent abuse. This sequenced approach avoids inefficiency while upholding due process. Relatedly, strike-outs are exceptional: a counterclaim, for instance, survives unless obviously unsustainable, allowing trial. HONG SHENG ENGINEERING SDN BHD vs MULTILINK RESOURCES SDN BHD
In time-barred claims, limitation defenses may feature but require plain evidence, not mini-trials. TAY KUAN TEA @ TAY SWEE SENG vs PHOON YUH JIUN Factual disputes, like loan vs. share trading funds, demand full hearings. HO KAM CHOY vs CHUNG CHIN HIONG
To succeed (or defend) under Order 18 r 19, consider these guidelines:
| Case | Key Holding | Relevance ||------|-------------|-----------|| Tan Heng Chew & Ors v. Tan Kim Hor & Ors2009 2 CLJ 234 | No adverse comments on second strike-out with different grounds. RANJEET SINGH SIDHU & ANOR vs ZAVARCO PLC & ANOR (ENCLS 90 & 94) - 2017 MarsdenLR 802YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857 | No general ban on successive applications. || Sri Astaka Sdn Bhd v. Chong Le Chin2020 MLRHU 1186 | Res judicata inapplicable to distinct issues. YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857 | Permits where facts differ. || Ranjeet Singh Sidhu & Anor v. Zavarco Plc & Ors2017 MLRHU 1519 | New facts negate estoppel. YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857SRI ASTAKA SDN BHD vs CHONG LE CHIN (ENCLS 2 33 35 37 42 & 46) - 2021 MarsdenLR 1201 | Emphasizes factual evolution. || Malaysia Airlines Berhad2019 1 MLJ 59 | Strike out only if plainly unsustainable. SIGNATURE CABINET SDN BHD vs LIM KENG HENG & ORS | General O 18 r 19 test. |
Successive strike-out applications by the same party are generally permissible in Malaysian courts, provided they rely on new or distinct grounds to evade res judicata or estoppel. Courts prioritize jurisdiction before merits, fostering efficiency without rigidity. Practitioners should:- Ground applications on fresh facts.- Avoid repetition to prevent abuse findings.- Anticipate bundled hearings for speed.
This procedural flexibility balances justice and finality, but outcomes depend on specifics. For tailored advice, engage counsel. Stay informed on ROC amendments and evolving precedents. ALLIED CAPITAL SDN BHD vs MOHD LATIFF SHAH MOHD ANOTHER APPLICATION - 2004 MarsdenLR 1166RANJEET SINGH SIDHU & ANOR vs ZAVARCO PLC & ANOR (ENCLS 90 & 94) - 2017 MarsdenLR 802YONG HARDWARE TRADING SDN BHD vs PHUA KIAN MING & ORS - 2023 MarsdenLR 857SRI ASTAKA SDN BHD vs CHONG LE CHIN (ENCLS 2 33 35 37 42 & 46) - 2021 MarsdenLR 1201
#MalaysianLaw, #StrikeOutApplication, #ResJudicata
Two Grounds Advanced For The Striking Out Application [21] On the two grounds relied upon by the defendants, that of: i) lack of identity of the tortfeasor and ii) limitation, I will first deal with the issue of limitation ... application because the defendants' striking out application is also grounded on: (i) Order 18 r 19(1)(b) a href="./.. ... [33] I observed that the defendants have filed their striking out application witho....
Applying The Law To The Facts In The Context Of An Order 18 Rule 19 Application [12] In considering an O 18 r 19 summary striking out application, I am not to look behind or around the pleadings to see if the pleadings disclose a reasonable cause of action. ... [17] The tests for a striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows: [2019] 1 MLJ 59 (SC) at 68 (a) it is only in plain and obvious cases that....
Malaysia Airlines Berhad; [2019] 1 MLJ 59; [2018] 9 CLJ 425; [2018] AMR 529, the Federal Court propounds the following principles to follow when considering an application to strike out: [17] The tests for a striking out application under O 18 r 19 of the ROC, as ... has a cause of action or a defence; ... ... And I am inclined to say that in the circumstances of this suit, it is fit and just to dismiss D4Co's striking out application, so that both sides' respective cases can be hear....
It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v. Moloney & Ors 9). ... P's Prayer In The Application [13] Foremost, I would like to point out that D1-D4Co's striking out Application prays that an Order be given to strike out P's claim entirely ie not only as against D1-D4Co, but as against all the Defendants. ... has a cause of action or a defence; ... ... And I a....
[13] In considering an O 18 r 19 summary striking out application, I am not to look behind or around the pleadings to see if the pleadings disclose a reasonable cause of action. ... [23] At the trial is where these two sides' merits get to be canvassed and ought to be finally determined. [24] The O 18 r 19(1) striking out procedure is the exception rather than the rule in our legal system. ... The Law On Striking Out [3] It is well established that so long as the pleadings (here: D1....
Applying The Law To This Matter [13] Foremost, D1/PERDA's Striking Out Application must be brought into context. It is an application made in a summary process. In considering D1/PERDA's Striking Out Application, I am to focus on what is pleaded. ... The 1st Defendant (D1/PERDA) applies to strike out P's claim (DI/PERDA's Striking Out Application). [2] D1/PERDA applies to strike out P's claim under all four limbs of O 18 r 19(1). Under limb (a), DI/PERDA's ground is ....
[41] There are two types of estoppel per rem judicatum: cause of action estoppel and issue estoppel. ... Khaleeg contends that in the absence of a valid supporting affidavit, the striking out application should be dismissed. ... Scope Of The Striking Out Application [27] Khaleeg contends that Shaoxing's application is confined to O 18 r 19(1)(d) of the Rules of 2012, which means Shaoxing implicitly accepts that the claim discloses a reasonable cause of ac....
Henderson was "both a rule of public policy and an application of the law of res judicata". He expressed his own view of the relationship between the two at p 31 as follows: "... ... HC Decision [7] The HC dismissed the striking out application as the current claim was different from the previous claims. ... [5]The previous claims are as follows: [6]Based on these previous claims, the appellant filed its striking-out application. ... cause of action estoppel or iss....
The Parties' Respective Contention [8] In support of his application to strike out the Plaintiff's action in encl 12, the Defendant adopted a two-prong approach. [9] There was no loan to start with, argued the Defendant. ... [4] Initially, two interlocutory applications were before this Court : Enclosures 12 and 33. [5] Enclosure 33, an application for discovery filed by the Plaintiff, has since been withdrawn. ... [6] What remains for determination is encl 12, the Defendant's application#....
[48] In the present case, one of the grounds of the Defendant's striking out application is the Plaintiff's action is time-barred under the Limitation Act 1953 . ... b) The court held that "It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence." ... [50] In light of the above reasons, the Defendant cannot rely on limitation as a ground in this striking out application#HL....
As the petitioner has already availed the remedy under the Act to challenge the action of the respondents accordingly filing a writ petition challenging the self-same action will be hit by the principle of res judicata. A party cannot initiate two separate proceedings before two separate forums on the self-same cause of action. The respondents pray for dismissal of the writ petition.
And having accepted that prayer, it proceeded to reject the election petition on the ground that it did not disclose any cause of action. However, we find that the High Court has muddled the analysis of the pleadings. In the present case, the High Court has presumably adopted the latter course. It first proceeded to examine the application for striking out the pleadings in paragraphs 2 & 9 to 11 of the election petition being frivolous and vexatious and also because the same did not disclose any cause of action.
There will be two conflicting decisions in the same suit between the same parties based on a joint cause of action. If the Courts of law speak with contradictory voices in the same dispute, it will lead to confusion and judicial chaos.” The reasons of this Court for allowing the appeal will, necessarily conflict with the reasons of the lowers appellate court for dismissing the deceased plaintiff's appeal. The Court cannot create a situation which may lead to two contradictory decisions in the same suit.
Another decision that has been brought to my notice by the learned senior counsel if of the Madras High Court Packirisamy Mudaliar and another v. Sri. Ranganathan Perumal and others (1998 (2) MLJ 42). Two suit were filed by the same party in respect of the very same property against the very same defendant. The first one was for a perpetual injunction and the second one for return of the amount paid in advance towards the sale consideration pursuant to an agreement for sale.
Pointing out to a mistake is not the same as striking it down. The various formulas which were admitted to reconcile by a judgment of the Supreme Court in Sarla Verma v. Delhi Transport Corporation [2009(3) Law Herald (SC) 2107 : 2010(1) Law Herald (Acc.) (SC) 65] : 2009(6) SCC 121 has not suggested anywhere that Schedule II will be discarded in a petition filed under Section 163-A of the Motor Vehicles Act. The provision has stood on without being statutorily modified or struck down by any judicial pronouncement. The petitioner’s parents were entitled to consideration of....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
