1. ) Conweld Engineering Sdn Bhd 2. ) Low Terk Chen 3. ) Low Man Fook 1. ) Goh Swee Boh @ Goh Cheng Kin 2. ) Goh Tze Chien

1. ) Conweld Engineering Sdn Bhd 2. ) Low Terk Chen 3. ) Low Man Fook 1. ) Goh Swee Boh @ Goh Cheng Kin 2. ) Goh Tze Chien

The Court of Appeal held that Malaysian law continues to recognise the tort of collateral abuse of process as a distinct cause of action and restated its elements (initiation, predominant collateral purpose, and damages). However, on the facts the plaintiffs failed to prove the requisite damage and the second and third plaintiffs lacked locus standi to sue for the tort because they were not parties to the winding-up petition; therefore the plaintiffs' claims failed and the appeal and cross-appeal were dismissed.

Citation
W-02(NCC)(W)-849-05/2019 (Mahkamah Rayuan)
Parties
Appellant: Conweld Engineering Sdn Bhd; Appellant: Low Terk Chen; Appellant: Low Man Fook; Respondent: Goh Swee Boh @ Goh Cheng Kin; Respondent: Goh Tze Chien
Court
NCC
Jurisdiction
Malaysia
Judgment Date
27 September 2022
Case Number
W-02(NCC)(W)-849-05/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal From High Court (post Trial) / Judgment on Appeal (post Trial)
Outcome
Appeal and cross-appeal dismissed
Legal Topics
Collateral Abuse of Process, Winding Up Petitions, Ex Parte Interlocutory Orders (mareva/pl), Res Judicata, Striking Out Under Order 18 R 19 Rules of Court, Locus Standi
Source Language
Malay/English
Tort Law Company Law Civil Procedure Appellate Law Collateral Abuse of Process Winding Up Petitions Ex Parte Interlocutory Orders (mareva/pl) Res Judicata +2 more

Case Brief

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Parties

Conweld Engineering Sdn Bhd

Appellant

Low Terk Chen

Appellant

Low Man Fook

Appellant

Goh Swee Boh @ Goh Cheng Kin

Respondent

Goh Tze Chien

Respondent

Procedural Posture

Civil Appeal From High Court (post Trial) / Judgment on Appeal (post Trial)

Legal Issues

  1. 1 Whether Malaysian law should continue to recognise the tort of collateral abuse of process as a distinct cause of action
  2. 2 Whether the Singapore Court of Appeal decision in Lee Tat should be followed
  3. 3 Whether the elements of collateral abuse of process were established (initiation, predominant collateral purpose, damage)

Ratio Decidendi

The Court of Appeal held that Malaysian law continues to recognise the tort of collateral abuse of process as a distinct cause of action and restated its elements (initiation, predominant collateral purpose, and damages). However, on the facts the plaintiffs failed to prove the requisite damage and the second and third plaintiffs lacked locus standi to sue for the tort because they were not parties to the winding-up petition; therefore the plaintiffs' claims failed and the appeal and cross-appeal were dismissed.

Court Disposition

Appeal and cross-appeal dismissed

Orders

  • Appeal dismissed
  • Cross-appeal dismissed