MOHD HAFIS BIN JOHAN [BERNIAGA ATAS NAMA DAN GAYA THE AYDENS (JM0750428-U)] 1. MOHAMED KHALED BIN NORDIN 2. KERAJAAN NEGERI JOHOR 3. PUJB RETAIL SDN BHD [NO. SYARIKAT : 1102748-H] 4. MAJLIS AMANAH RAKYAT

JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA [CIVIL SUIT NO: JA-21NCvC-17-05/2020] BETWEEN MOHD HAFIS BIN JOHAN [BERNIAGA ATAS NAMA DAN GAYA THE AYDENS (JM0750428-U)] … PLAINTIFF AND 1. MOHAMED KHALED BIN NORDIN 2. KERAJAAN NEGERI JOHOR 3. PUJB RETAIL SDN BHD [NO. SYARIKAT : 1102748-H] 4. MAJLIS AMANAH RAKYAT …DEFENDANTS GROUNDS OF JUDGMENT ------------------------------------------------------------------------------------------------------------------------------ 1 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ Introduction [1] This was the Fourth Defendant’s application (“this Application”) in enclosure 26 to strike out the Plaintiff’s writ of summons and statement of claim pursuant to Order 18 rule 19 of the Rules of Court 2012 (“Rules of Court”). The background facts [2] The Plaintiff is an individual, whilst the First Defendant, the Chief Minister of Johor at the material time, had officiated and launched a Programme known as JohorMart (“the Programme”) on 25 April 2015. The Plaintiff participated in the Programme by entering into an Operator Agreement with the Third Defendant. The Fourth Defendant, Majlis Amanah Rakyat (“MARA”) via a letter (“Surat Tawaran Pembiayaan Perniagaan MARA”) dated 15 June 2016, offered the Plaintiff a Bai Al Inah financing facility (“the Facility”) in the amount of MYR180,000, for the purpose of the Plaintiff’s participation in the Programme. The Facility was accepted by the Plaintiff. [3] The Plaintiff’s JohorMart grocery store, under the Programme, was finally opened on 1 April 2017, but due to certain challenges, he suffered losses. As a result thereof, the Plaintiff eventually issued a letter to the Perbadanan Usahawan Johor Sdn Bhd (a shareholder of the Third Defendant), to surrender the JohorMart grocery store. ------------------------------------------------------------------------------------------------------------------------------ 2 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [4] On 6 May 2020, the Plaintiff instituted an action against the Defendants, for damages for the failure of his business, claiming, inter alia, that the Fourth Defendant had not only misrepresented, but had failed to conduct a feasibility study of the potential risks to the business, and had wrongfully disbursed the money under the Facility to the Third Defendant. On 14 September 2020, the Fourth Defendant filed this Application, which was allowed for the following reasons. The applicable law [5] In striking out the Statement of Claim, the starting point of reference was Order 18 rule 19(1) of the Rules of Court, which reads as follows: Order 18 – Pleadings Rule 19. Striking out pleadings and endorsements (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that – (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious: (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. ------------------------------------------------------------------------------------------------------------------------------ 3 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [6] The law on striking out is trite and has been encapsulated by the Supreme Court in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, [1993] 3 MLJ 36, where it was distilled by Mohamed Dzaiddin SCJ (as he then was) in the following words: The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney- General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [Emphasis added]. [7] I was guided also by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1, where it was stated by Ramly Ali FCJ: The principles for striking out pleadings pursuant to O.18 r.19 of the ROC are well settled. It is only in a plain and obvious case that recourse should be had to the summary process under this rule; and this summary process can only be adopted when it can clearly be seen that a claim on the face of ------------------------------------------------------------------------------------------------------------------------------ 4 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ it is obviously unsustainable (see Bandar Builder (supra), Hubbuck & Sons Ltd .v. Wilkinson, Heywood & Clard Ltd [1889] 1 QB 86; Attorney General of the Duchy of Lancester .v. London and North Western Railway Company [1892] 3 Ch 274). The test for striking out application under O.18 r.19 of the ROC as adopted by the Supreme Court in Bandar Builder (supra) are inter alia as follows: a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; b) this summary procedure can only be adopted when it can be clearly seen that a claim or answers is on the face of it ‘obviously unsustainable’; c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; d) If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O.33 r.3 of the ROC; and e) The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that defences raised are not arguable. [8] The question that arose was what do these phrases in Order 18 Rule 19 (1) of the Rules of Court mean. ‘Scandalous’ generally refers to matters which improperly cast a derogatory light on someone, usually a party to an action with respect to moral character or uses repulsive language; ‘frivolous or vexatious’ generally refers to a groundless action, with no prospect of success, often raised to embarrass or annoy the other party to an action; and ‘abuse of the process of the court’ generally refers to situations where the court’s process is used for an ------------------------------------------------------------------------------------------------------------------------------ 5 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ unlawful object and not for the actual purpose intended for justice: per Ramly Ali JCA (as he then was) in See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 and Shahizul Helmi Sharani @ Rohan v. Angkatan Tentera Malaysia & Ors [2017] 1 LNS 1005. [9] I also found instructive the Court of Appeal case of Pengiran Othman Shah Pengiran Mohd Yussof & Anor v. Karambunai Resorts Sdn Bhd & Ors [1996] 1 CLJ 257, where in referring to McKay & Anor v. Essex Area Health Authority & Anor [1982] 2 QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 890, it was stated that ‘whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case is argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success.’ [10] It was, therefore, the duty of the Court to scrutinise, with a fine-tooth comb, the evidence and the merits of the case to determine whether the action was bound to fail. This principle was set out by the Privy Council in Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, and the Supreme Court in Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16. Contentions, evaluation, and findings Whether the Fourth Defendant was negligent in ensuring the proper management of the Programme ------------------------------------------------------------------------------------------------------------------------------ 6 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [11] The Plaintiff averred that there was a Memorandum of Understanding (“MOU”) (exhibited as A2 to the Affidavit-In-Reply affirmed by the Plaintiff on 1 October 2020), and pursuant thereto, the Fourth Defendant assumed the duty and obligation to conduct a feasibility study of the potential risks to the business that the Plaintiff had embarked on. [12] I found the Plaintif’s argument unmeritorious in view of the fact that the MOU, which was between the Plaintiff and the Third Defendant, was prepared not by the Fourth Defendant, but by the Third Defendant and merely copied to the Fourth Defendant. Furthermore, there was no requirement in the MOU or any document whatsoever for a feasibility study to be conducted. [13] Secondly, the Plaintiff on his own volition and without any encouragement whatsoever from the Fourth Defendant, had accepted the Facility, in the absence of any factors, such as misrepresentation, that would have vitiated a binding contract between the Plaintiff and the Fourth Defendant. [14] Thirdly, there was no nexus between the Fourth Defendant and the Plaintiff that would render the former liable for the failure of the Plaintiff’s business with regard to the Programme. The challenges that the Plaintiff had faced in the running of the business could not be attributed to the Fourth Defendant, whose only obligation was to ------------------------------------------------------------------------------------------------------------------------------ 7 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ provide the Facility according to its terms. This is fortified by the fact that the Fourth Defendant is not a bank, but a government agency, which in this case was merely providing financial assistance to Bumiputra entrepreneurs, including the Plaintiff. [15] I found instructive the case of Chang Yun Tai & Ors v. HSBC Bank (M) Bhd & Other Appeals [2011] 7 CLJ 909, in particular the comments of Zulkefli Makinudin FCJ on the duty, or the absence thereof, of banks in advising borrowers: [14] It is also our considered view that the respondent has no duty to advise the appellants as borrowers in the present case because it is merely a financing bank and not an advisory bank. Generally speaking, in a commercial loan a lender is entitled to seek and obtain the best terms it can. It may have regard solely to its own commercial interest. It is not the lender's obligation to ensure that the borrower has made a correct or wise commercial decision based upon a full understanding of all risks unless the borrower has specifically sought the lender's advice. (See the case of Redmand v. Allied Irish Bank Plc [1987] FLR 307). … [21] The relationship between the respondent as the lending bank and the appellants as the borrowers is a contractual one and is purely commercial in nature. It is one of debtor and creditor. The respondent did no more than to lend the monies as requested. In return, the appellants promised to repay the monies lent. [16] The case of Chang Yun Tai & Ors v. HSBC Bank (M) Bhd & Other Appeals made it crystal clear that the Fourth Defendant, as the financier in this case, could not be made liable, either in contract or tort, for the failure of the Plaintiff’s business. This is fortified by the fact ------------------------------------------------------------------------------------------------------------------------------ 8 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ that the Fourth Defendant, is not a bank but a government agency that was merely providing financial assistance to Bumiputra entrepreneurs. Reference is made also to the Federal Court case of Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Bhd [2016] 2 CLJ 717 on the same principle. [17] The Plaintiff had also averred that he had not received the goods or assets pursuant to the Programme. However, it is to be noted that the Fourth Defendant had nothing to do with goods or assets that the Plaintiff was bound to have received under the Programme, as the Fourth Defendant’s obligation under the Facility was limited to its terms and conditions. Whether the money was wrongfully disbursed [18] The Plaintiff further averred that he had never received the money pursuant to the Facility, and that the Fourth Defendant was wrong to have disbursed it directly to the Third Defendant. [19] I am unable to agree with the Plaintiff on this issue as the disbursement to the Third Defendant was in compliance with the terms of the Facility, in particular, the Permohonan Pengeluaran Wang Pembiayaan dan Baucar Bayaran (exhibited as MSH4 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020), which stipulated how and to whom the money was to be disbursed. ------------------------------------------------------------------------------------------------------------------------------ 9 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [20] Furthermore, the Plaintiff had never protested as to how the money was disbursed. At this juncture, reference was made to the Court of Appeal case of KGN Jaya Sdn. Bhd. v. Pan Reliance Sdn. Bhd. [1996] 2 CLJ 611, where Gopal Sri Ram JCA (as he then was), remarked on similar conduct: … The appellant remained silent, held onto the account, and did nothing about it. The denial by its solicitor's letter of 4 January 1993, came long after the delivery of the account. When asked why his client had kept silent for a rather long period of time, Encik Darshan Singh's response was that his client was a large company and did not do anything until the letter before action was received. We trust that we will be forgiven if we are unable to detect the logic in this response. We are of the view that it would be a travesty of justice if we were to accede to the appellant's arguments. We are left in no doubt that the undisputed facts of this case admit of the conclusion that the respondent was, by the conduct of the appellant, lulled into the belief that the appellant had no challenge to the accounts, leave alone the legal relationship between the parties. To put it another way, the appellant, by its silence coupled with the other circumstances of the case, encouraged the respondent to believe that it intended to raise no challenge to the existence of a prior legal relation between the parties or to the figure which the account showed as owing by it. Having done so, it ought not to be permitted to now contend otherwise. It follows that it does not, therefore, lie in the mouth of the appellant to now deny the respondent's claim. It would be plainly inequitable to do so. An examination of the facts leads us to this conclusion. The legal basis upon which such a conclusion may be sustained is well-settled and is now beyond question. See Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Bhd. [1995] 4 CLJ 283;[1995] 3 MLJ 331. [Emphasis added.] ------------------------------------------------------------------------------------------------------------------------------ 10 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [21] In a similar fashion, the Plaintiff’s conduct was untenable and inequitable, and raised an irresistible inference that this was merely an afterthought, and could not, therefore, amount to a triable issue. To borrow the words of Vincent Ng J in Southern Finance Bhd v. Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464, the Plaintiff by his conduct, had lulled the Fourth Defendant into the belief that there was no real dispute on the claim, and as such, was estopped from denying the particular amount claimed. Whether the Plaintiff’s dispute on the documents rendered the case sustainable [22] In contending that he had a sustainable case, the Plaintiff claimed that he had not received Annexure D of the Surat Tawaran Pembiayaan Perniagaan MARA (exhibited as MSH1 to the Fourth Defendant’s Affidavit-In-Support, affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020). [23] In my view, this was a bare and unsubstantiated claim, since Annexure D was merely a summary of the details of the Facility, particulars of which were acknowledged by the Plaintiff. Secondly, the Plaintiff had signed Annexure E (Memorandum Penerimaan) of the Surat Tawaran Pembiayaan Perniagaan MARA, which was admitted by him in paragraph 14 of his amended Statement of Claim dated 17 June 2020. ------------------------------------------------------------------------------------------------------------------------------ 11 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [24] What remained undeniable and undisputed was the fact that the Plaintif had signed the following documents (exhibited respectively as MHS1-MSH4 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020): a) Surat Tawaran Pembiayaan Perniagaan MARA dated 15 June 2016 - MSH1; b) Perjanjian Pembelian Harta and Perjanjian Penjualan Harta both of which were dated 30 June 2016 - MSH2; c) Surat Jaminan dan Tanggung Rugi dated 30 June 2016 - MSH3; and d) Permohonan Pengeluaran Wang Pembiayaan dan Baucar Bayaran dated 24 Julai 2016 - MSH4. [25] The Plaintiff had also disputed the statement of account dated 31 May 2020 (exhibited as MSH6 to the Fourth Defendant’s Affidavit-In- Support affirmed by the Deputy Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020). In my view, merely disputing such documents amounted to a bald statement, as the Plaintiff had failed to demonstrate a manifest error in such account, as provided in clause 13 of the Perjanjian Penjualan Harta, which reads: Adalah dengan ini dipersetujui bahawa satu penyata akaun secara bertulis yang menyatakan jumlah (jumlah-jumlah) yang perlu dibayar dan disahkan sewajarnya oleh pegawai MARA atau mana-mana orang yang diberi kuasa hendaklah dalam ketiadaan kesilapan manifest menjadi keterangan ------------------------------------------------------------------------------------------------------------------------------ 12 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ muktamad bahawa amaun sedemikian adalah sebenarnya terakru dan kena dibayar oleh Pelanggan. [Emphasis added.] [26] On the conclusiveness of the statement of account, reference was made also to Arab-Malaysian Finance Bhd v. Siva Subramaniam Appupillai [1999] 8 CLJ 23, where it was stated by Azmel Maamor J, in the following passage: The appellant had produced a statement of account showing the amount outstanding. In the light of the conclusive evidence clause in the guarantee, it would not be open for the respondent to dispute the amount as stated by the appellant in the final account. [27] I also drew guidance from the cases of Huo Heng Oil Co (EM) Sdn Bhd v. Tang Tiew Yong [1984] 1 LNS 45 and Southern Finance Bhd v. Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 46, where in the latter, it was stated by Vincent Ng J: It is not sufficient for the defendant to merely deny the debt; he must plead any cogent and relevant facts which negative the existence of the debt or which show that the claim is not maintainable on other grounds. [28] In the same way, the Plaintiff could not merely deny the debt without any cogent evidence to support such averment. It is also pertinent to note that the Fourth Defendant had issued the notices of demand and reminders dated 12 December 2017, 22 April 2018, 24 June 2018, 25 November 2018 and 19 February 2019 (exhibited as MSH5 to the Fourth Defendant’s Affidavit-In-Support affirmed by the Deputy ------------------------------------------------------------------------------------------------------------------------------ 13 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ Director (Management Services), one Mohd Shazwanul Hakim bin Ismail, dated 10 September 2020), the importance of which had been highlighted by the Court of Appeal in The Pacific Bank Bhd v. Chan Peng Leong [1998] 2 MLJ 613, through Gopal Sri Ram JCA (as he then was), in the following passage: So far as authority is concerned, the point is, I think, concluded against the appellant by the decision of the Saskatchewan Court of Appeal in Anglo- Canadian Mortgage Investment Corp v Shaw (1921) 59 DLR 152, the headnote to which reads as follows: If under the terms of an agreement for the purchase of land, a demand for payment is necessary before commencing action, and if prior to launching a first action the plaintiff has in fact made a demand for payment but at the trial of that action has failed to prove the demand and the action is dismissed, a subsequent action will not lie for the same cause, but if in fact no demand has been made, the dismissal of the first action is no bar to recovery in a second action, after demand has been made, because until a demand is made no cause of action exists and any action brought before demand is made is premature. [Emphasis added.] Conclusion [29] The Plaintiff, relying on several authorities, had contended that his case was not an obviously unsustainable one, and that the issues raised should be addressed comprehensively at a full trial. However, taking into account all the evidence before me, I found no merit in this argument. ------------------------------------------------------------------------------------------------------------------------------ 14 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ [30] In the final analysis, the Plaintiff had applied for and benefitted from the financing, but unfortunately had faced challenges in running the business, which had nothing to do with the Fourth Defendant. [31] In the upshot, based on the aforesaid reasons, and judicious consideration of all the evidence before this Court, and submissions of both parties, this Application was allowed with costs. Dated: 7 March 2021 (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel: For the Plaintiff – Mohd Fairuz bin Abdullah; Messrs Mohd Najid & Partners For the Fourth Defendant – Amalia Marsita binti Hamdan and Noor Anisha binti Mohd Musafri; Messrs Tawfeek Badjenid & Partners Cases referred to: ➢ Arab-Malaysian Finance Bhd v. Siva Subramaniam Appupillai [1999] 8 CLJ 23 ➢ Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, [1993] 3 MLJ 36 ------------------------------------------------------------------------------------------------------------------------------ 15 JA-21NCvC-17-05/2020 7 March 2021 ------------------------------------------------------------------------------------------------------------------------------ ➢ Chang Yun Tai & Ors v. HSBC Bank (M) Bhd & Other Appeals [2011] 7 CLJ 909 ➢ Huo Heng Oil Co (EM) Sdn Bhd v. Tang Tiew Yong [1984] 1 LNS 45 ➢ KGN Jaya Sdn. Bhd. v. Pan Reliance Sdn. Bhd. [1996] 2 CLJ 611 ➢ Malaysian International Trading Corporation Sdn Bhd v. RHB Bank Bhd [2016] 2 CLJ 717 ➢ McKay & Anor v. Essex Area Health Authority & Anor [1982] 2 QB 1166; [1982] 2 All ER 771 ➢ Pengiran Othman Shah Pengiran Mohd Yussof & Anor v. Karambunai Resorts Sdn Bhd & Ors [1996] 1 CLJ 257 ➢ Raja Zainal Abidin bin Raja Haji Tachik & Ors v British-American Life & General Insurance Bhd [1993] 3 MLJ 16 ➢ See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235 ➢ Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1, ➢ Shahizul Helmi Sharani @ Rohan v. Angkatan Tentera Malaysia & Ors [2017] 1 LNS 1005 ➢ Southern Finance Bhd v. Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464 ➢ The Pacific Bank Bhd v. Chan Peng Leong [1998] 2 MLJ 613 ➢ Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1 Legislation referred to: ➢ Rules of Court 2012, Order 18, rule 19 ------------------------------------------------------------------------------------------------------------------------------ 16