BEYOND HALMARK SDN BHD (Company No.: 1099917-T) 1. CHEAH SIU HUI [personal representative of Cheah Theam Kheng (deceased)] (NRIC No.: 310131-10-5261) 2. YHANASEGARAN S GOVINDASAMY (sued as the sole proprietor of Messrs. Yahna S.G) (NRIC No.

BEYOND HALMARK SDN BHD (Company No.: 1099917-T) 1. CHEAH SIU HUI [personal representative of Cheah Theam Kheng (deceased)] (NRIC No.: 310131-10-5261) 2. YHANASEGARAN S GOVINDASAMY (sued as the sole proprietor of Messrs. Yahna S.G) (NRIC No.

The striking‑out application was dismissed because the plaintiff disclosed a reasonable cause of action to trace and recover trust monies from recipients including the 2nd defendant; Suit 242 and the present suit advance distinct causes (liability of MNL v tracing/constructive trust against recipients), res judicata did not bar the claim as the 2nd defendant was not a party to Suit 242 and the issues as pleaded were not finally decided; documentary evidence and admissions raised triable issues of knowing receipt and unconscionability, so summary dismissal under Order 18 r 19 was inappropriate.

Citation
WA-22NCVC-471-07/2019 (Mahkamah Tinggi)
Parties
Plaintiff: BEYOND HALMARK SDN BHD; 1st Defendant (personal Representative): Cheah Siu Hui (personal representative of Cheah Theam Kheng, deceased); 2nd Defendant: Yahnasegaran s/o Govindasamy; 3rd Defendant: Cheah Siu Hui
Court
High Court
Jurisdiction
Malaysia
Judgment Date
22 September 2020
Case Number
WA-22NCVC-471-07/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Writ Action / Application to Strike Out Under Order 18 Rule 19 (roc 2012) Heard and Determined
Outcome
Second Defendant's strike out application (Enclosure 8) dismissed
Legal Topics
Strike Out Application, Res Judicata, Tracing and Restitution, Knowing Receipt, Stakeholder Duties, Breach of Trust
Source Language
Malay/English
Civil Procedure Equity and Trusts Company Law Professional Negligence/solicitors Conduct Strike Out Application Res Judicata Tracing and Restitution Knowing Receipt +2 more

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Parties

BEYOND HALMARK SDN BHD

Plaintiff

Cheah Siu Hui (personal representative of Cheah Theam Kheng, deceased)

1st Defendant (personal Representative)

Yahnasegaran s/o Govindasamy

2nd Defendant

Cheah Siu Hui

3rd Defendant

Procedural Posture

Civil Writ Action / Application to Strike Out Under Order 18 Rule 19 (roc 2012) Heard and Determined

Legal Issues

  1. 1 Whether the plaintiff's statement of claim discloses a reasonable cause of action against the 2nd defendant
  2. 2 Whether the claim is scandalous, frivolous or vexatious or otherwise an abuse of court process (duplicity/res judicata)
  3. 3 Whether res judicata bars the present claim given earlier Suit 242

Ratio Decidendi

The striking‑out application was dismissed because the plaintiff disclosed a reasonable cause of action to trace and recover trust monies from recipients including the 2nd defendant; Suit 242 and the present suit advance distinct causes (liability of MNL v tracing/constructive trust against recipients), res judicata did not bar the claim as the 2nd defendant was not a party to Suit 242 and the issues as pleaded were not finally decided; documentary evidence and admissions raised triable issues of knowing receipt and unconscionability, so summary dismissal under Order 18 r 19 was inappropriate.

Court Disposition

Second Defendant's strike out application (Enclosure 8) dismissed

Orders

  • Enclosure 8 dismissed
  • Second Defendant to pay costs of RM6,000.00 to Plaintiff subject to allocatur