Khew Chee Sun Terracotta Tile Centre Sdn Bhd

Khew Chee Sun Terracotta Tile Centre Sdn Bhd

The claim against the 1st Defendant cannot be struck out because the action for accounts is partially within the six year limitation period and there is evidential basis (2015 payment vouchers/cheques) to infer a payment on behalf of the 1st Defendant which may revive limitation and raises triable issues; the claims against the 2nd and 3rd Defendants are struck out because they are not parties to the agreement and the facts alleged (common directorship, payment vouchers and personal cheques) are insufficient to lift the corporate veil absent fraud or stronger evidence of agency or alter ego.

Citation
WA-22NCVC-930-12/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Khew Chee Sun; 1st Defendant: Best Tile Marketing Sdn Bhd; 2nd Defendant: Terracotta Tiles Centre Sdn Bhd; 3rd Defendant: Poh Soon Terng
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 August 2020
Case Number
WA-22NCVC-930-12/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Suit (contract/accounts) / Strike Out Applications Decided (grounds of Judgment)
Outcome
Application by 1st Defendant dismissed; applications by 2nd and 3rd Defendants allowed.
Legal Topics
Accounts, Royalty Payments, Statute of Limitations, Lifting Corporate Veil, Strike Out/summarily Dismiss
Source Language
Malay/English
Contract Civil Procedure Company Law Limitation Accounts Royalty Payments Statute of Limitations Lifting Corporate Veil +1 more

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Parties

Khew Chee Sun

Plaintiff

Best Tile Marketing Sdn Bhd

1st Defendant

Terracotta Tiles Centre Sdn Bhd

2nd Defendant

Poh Soon Terng

3rd Defendant

Procedural Posture

Civil Suit (contract/accounts) / Strike Out Applications Decided (grounds of Judgment)

Legal Issues

  1. 1 Whether the plaintiff's claim is time barred under the Limitation Act for an action for accounts
  2. 2 Whether any sum is due from the 1st Defendant given alleged dormancy and evidence of no sales
  3. 3 Whether the 2nd and 3rd Defendants can be held liable under a contract to which they are not parties

Ratio Decidendi

The claim against the 1st Defendant cannot be struck out because the action for accounts is partially within the six year limitation period and there is evidential basis (2015 payment vouchers/cheques) to infer a payment on behalf of the 1st Defendant which may revive limitation and raises triable issues; the claims against the 2nd and 3rd Defendants are struck out because they are not parties to the agreement and the facts alleged (common directorship, payment vouchers and personal cheques) are insufficient to lift the corporate veil absent fraud or stronger evidence of agency or alter ego.

Court Disposition

Application by 1st Defendant dismissed; applications by 2nd and 3rd Defendants allowed.

Orders

  • 1st Defendant's application to strike out dismissed
  • 2nd and 3rd Defendants' applications to strike out allowed and the claim against them struck out