SS RIAZ TRADING 2 SDN BHD NEWSTAR AGENCIES SDN BHD

SS RIAZ TRADING 2 SDN BHD NEWSTAR AGENCIES SDN BHD

The counterclaim was struck out because the plaintiffs in the counterclaim improperly added a co-plaintiff who was not a party to the original action and the claims pleaded against the additional defendants (notably the 2015 container and conspiracy claims) lacked the requisite nexus to the subject matter of the original suit, constituting an abuse of process and likely to delay and embarrass trial; accordingly the court exercised its power under the Rules to strike out the counterclaim.

Citation
BA-22NCVC-545-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff (original Action); 1st Defendant (counterclaim): SS Riaz Trading 2 Sdn Bhd; Defendant (original Action); 2nd Plaintiff (counterclaim): Newstar Agencies Sdn Bhd; 1st Plaintiff (counterclaim): Gold Star Line Ltd; 2nd Defendant (counterclaim): Wali Trading 2 Sdn Bhd; 3rd Defendant (counterclaim): Sultan Wali S/O Faqir Wali; 4th Defendant (counterclaim): Rashid Khan S/O Mahboob; 5th Defendant (counterclaim): Salman bin Majid
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 August 2020
Case Number
BA-22NCVC-545-12/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Suit Shipping/contract; Original Claim and Counterclaim / Interlocutory Striking Out Application Decided (enclosure 23)
Outcome
Counterclaim by Gold Star Line Ltd and Newstar Agencies Sdn Bhd struck out
Legal Topics
Counterclaim, Striking Out of Pleadings, Joinder of Parties, Abuse of Process, Order 15 Rules, Order 18 Rule 19, Costs
Source Language
Malay/English
Civil Procedure Commercial Law Maritime/shipping Law Tort Law (conspiracy) Counterclaim Striking Out of Pleadings Joinder of Parties Abuse of Process +3 more

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Parties

SS Riaz Trading 2 Sdn Bhd

Plaintiff (original Action); 1st Defendant (counterclaim)

Newstar Agencies Sdn Bhd

Defendant (original Action); 2nd Plaintiff (counterclaim)

Gold Star Line Ltd

1st Plaintiff (counterclaim)

Wali Trading 2 Sdn Bhd

2nd Defendant (counterclaim)

Sultan Wali S/O Faqir Wali

3rd Defendant (counterclaim)

Rashid Khan S/O Mahboob

4th Defendant (counterclaim)

Salman bin Majid

5th Defendant (counterclaim)

Procedural Posture

Civil Suit Shipping/contract; Original Claim and Counterclaim / Interlocutory Striking Out Application Decided (enclosure 23)

Legal Issues

  1. 1 Whether a defendant may add a co-plaintiff not party to the original action in a counterclaim
  2. 2 Whether the counterclaim against additional parties is sufficiently connected to the subject matter of the original action to be maintained
  3. 3 Whether the counterclaim is an abuse of process and may be struck out under the Rules of Court

Ratio Decidendi

The counterclaim was struck out because the plaintiffs in the counterclaim improperly added a co-plaintiff who was not a party to the original action and the claims pleaded against the additional defendants (notably the 2015 container and conspiracy claims) lacked the requisite nexus to the subject matter of the original suit, constituting an abuse of process and likely to delay and embarrass trial; accordingly the court exercised its power under the Rules to strike out the counterclaim.

Court Disposition

Counterclaim by Gold Star Line Ltd and Newstar Agencies Sdn Bhd struck out

Orders

  • Counterclaim (enclosure 23) allowed to be struck out
  • Costs ordered in favour of applicants (2nd and 5th Defendants in the counterclaim): RM5000 against the Plaintiffs in the counterclaim