SARWAN SINGH A/L KUNDAN SINGH AMINAH BINTI FAUDZAR

SARWAN SINGH A/L KUNDAN SINGH AMINAH BINTI FAUDZAR

The Court of Appeal allowed the appeal because the appellant's pleaded case raising statutory illegality under the FSA and specific allegations of fraud against the respondent were not 'obviously unsustainable' on the face of the pleadings; issues of illegality, the effect on the letter of guarantee and alleged fraud required viva voce evidence and full trial, and doctrines such as ex turpi causa and res judicata could not be applied to dispose summarily where fraud and statutory illegality are pleaded and contested.

Citation
W-02(IM)(NCC)-998-05/2019 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Sarwan Singh a/l Kundan Singh; Respondent / Defendant: Aminah binti Faudzar
Court
IM
Jurisdiction
Malaysia
Judgment Date
3 December 2019
Case Number
W-02(IM)(NCC)-998-05/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) / Decision on Appeal Remitting Matter to High Court for Trial
Outcome
Appeal allowed; High Court striking out order dated 13/5/2019 set aside; matter remitted to the High Court for trial; costs in the cause.
Legal Topics
Illegality (ex Turpi Causa), Statutory Prohibition on Deposit Taking, Fraud Alleged to Have Obtained Prior Judgment, Res Judicata / Issue Estoppel, Guarantee Vs Indemnity, Striking Out Under Order 18 R 19 ROC, Application of Patel V Mirza
Source Language
Malay/English
Contract Law Banking and Financial Services Law Civil Procedure Evidence Illegality (ex Turpi Causa) Statutory Prohibition on Deposit Taking Fraud Alleged to Have Obtained Prior Judgment Res Judicata / Issue Estoppel +3 more

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Parties

Sarwan Singh a/l Kundan Singh

Appellant / Plaintiff

Aminah binti Faudzar

Respondent / Defendant

Procedural Posture

Civil Appeal (court of Appeal) / Decision on Appeal Remitting Matter to High Court for Trial

Legal Issues

  1. 1 Whether the appellant's claim should be struck out as frivolous, vexatious or an abuse of process under O18 r19 ROC
  2. 2 Whether the transactions amounted to prohibited deposit-taking under s.137 read with s.136 of the Financial Services Act 2013
  3. 3 Whether the appellant is estopped by res judicata/issue estoppel from challenging the impugned judgment

Ratio Decidendi

The Court of Appeal allowed the appeal because the appellant's pleaded case raising statutory illegality under the FSA and specific allegations of fraud against the respondent were not 'obviously unsustainable' on the face of the pleadings; issues of illegality, the effect on the letter of guarantee and alleged fraud required viva voce evidence and full trial, and doctrines such as ex turpi causa and res judicata could not be applied to dispose summarily where fraud and statutory illegality are pleaded and contested.

Court Disposition

Appeal allowed; High Court striking out order dated 13/5/2019 set aside; matter remitted to the High Court for trial; costs in the cause.

Orders

  • Appeal allowed
  • Order of the High Court dated 13/5/2019 set aside