CHIN KHING FEI 1. ) LIEW CHUI HAR 2. ) TAN CHAP (as a partner under the name and style of Messrs Tan Chap & Associates) 3. ) MESSRS TAN CHAP & ASSOCIATES

CHIN KHING FEI 1. ) LIEW CHUI HAR 2. ) TAN CHAP (as a partner under the name and style of Messrs Tan Chap & Associates) 3. ) MESSRS TAN CHAP & ASSOCIATES

The strike out application was dismissed because the interpleader order did not determine or preclude the plaintiff’s separate tort claims; the defence and counterclaim disclose a reasonable cause of action for negligence and conspiracy that require trial examination of facts (proximity, collusion, loss), and therefore the claim is not a plain and obvious case for striking out.

Citation
WA-22NCvC-416-07/2020 (Mahkamah Tinggi)
Parties
Plaintiff in Original Action; Defendant in First Defendant’s Counterclaim: Liew Chui Har; 1st Defendant in Original Action; Plaintiff in First Defendant’s Counterclaim: Low Wee Wee; 2nd Defendant in Original Action; Plaintiff in Second Defendant’s Counterclaim: Chin Khing Fei; 2nd Defendant in Second Defendant’s Counterclaim (as Partner): Tan Chap; 3rd Defendant in Second Defendant’s Counterclaim: Messrs Tan Chap & Associates
Court
High Court
Jurisdiction
Malaysia
Judgment Date
24 August 2021
Case Number
WA-22NCvC-416-07/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Dispute Involving Interpleader, Partnership, Contract and Tort (professional Negligence) / Interlocutory Decision on Application to Strike Out (enc 72) Under Order 18 R19 and Order 92 R4; Grounds of Decision After Prior Interpleader Originating Summons
Outcome
Strike out application (Enc 72) dismissed.
Legal Topics
Interpleader, Res Judicata, Solicitor Duty of Care, Negligence, Specific Performance, Strike Out Application, Affidavit Evidence, Orders 17/18/28/92 ROC
Source Language
Malay/English
Civil Procedure Contract Law Tort Professional Negligence Property Law Partnership Law Interpleader Res Judicata +6 more

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Parties

Liew Chui Har

Plaintiff in Original Action; Defendant in First Defendant’s Counterclaim

Low Wee Wee

1st Defendant in Original Action; Plaintiff in First Defendant’s Counterclaim

Chin Khing Fei

2nd Defendant in Original Action; Plaintiff in Second Defendant’s Counterclaim

Tan Chap

2nd Defendant in Second Defendant’s Counterclaim (as Partner)

Messrs Tan Chap & Associates

3rd Defendant in Second Defendant’s Counterclaim

Procedural Posture

Civil Dispute Involving Interpleader, Partnership, Contract and Tort (professional Negligence) / Interlocutory Decision on Application to Strike Out (enc 72) Under Order 18 R19 and Order 92 R4; Grounds of Decision After Prior Interpleader Originating Summons

Legal Issues

  1. 1 Whether the defendants’ prior interpleader order operates as res judicata to bar the plaintiff’s tort and negligence claims
  2. 2 Whether the plaintiff’s defence and counterclaim disclose a reasonable cause of action to survive a strike out under Order 18 r19/Order 92 r4
  3. 3 Whether the interpleader preconditions and grant establish absence of collusion and discharge defendants’ liability as stakeholders

Ratio Decidendi

The strike out application was dismissed because the interpleader order did not determine or preclude the plaintiff’s separate tort claims; the defence and counterclaim disclose a reasonable cause of action for negligence and conspiracy that require trial examination of facts (proximity, collusion, loss), and therefore the claim is not a plain and obvious case for striking out.

Court Disposition

Strike out application (Enc 72) dismissed.

Orders

  • Enc 72 dismissed
  • Defendants to pay costs of MYR 1,000 to plaintiff/respondent Chin Khing Fei