MRCB BUILDERS SDN BHD 1. PEMBINAAN LEEPING 2. CHAN KAH WAI 3. CHAI YEE HIN PIHAK KETIGA ZULBAHARI BIN ABU BAKAR

MRCB BUILDERS SDN BHD 1. PEMBINAAN LEEPING 2. CHAN KAH WAI 3. CHAI YEE HIN PIHAK KETIGA ZULBAHARI BIN ABU BAKAR

The 2nd Defendant demonstrated a prima facie claim for contribution such that the third party notice and Statement of Claim against the Third Party were not obviously unsustainable; the court therefore refused to set aside the leave and dismissed the Third Party's application under O.16 r.6 and O.18 r.19(1)(a),(b),(c),(d), finding triable issues requiring full trial; conversely the Third Party's separate application against the 3rd Defendant succeeded because the 3rd Defendant did not plead a contribution claim.

Citation
WA-22C-39-05/2020 (Mahkamah Tinggi)
Parties
Plaintiff: MRCB BUILDERS SDN BHD; 1st Defendant: PEMBINAAN LEEPING; 2nd Defendant: CHAN KAH WAI; 3rd Defendant: CHAI YEE HIN; Third Party: ZULBAHARI BIN ABU BAKAR
Court
High Court
Jurisdiction
Malaysia
Judgment Date
27 August 2021
Case Number
WA-22C-39-05/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Construction Dispute With Interlocutory Third Party Proceedings / Interlocutory Application to Set Aside Third Party Notice / Strike Out Third Party Proceedings
Outcome
Third Party's application in encl.79 to set aside leave, third party notice and SoC dismissed; separate application (encl.81) against 3rd Defendant allowed (earlier decision)
Legal Topics
Third Party Proceedings, Strike Out Application, Indemnity and Contribution, Abuse of Process, Leave to Issue Third Party Notice
Source Language
Malay/English
Civil Procedure Contract Tort Construction Law Employment Law Third Party Proceedings Strike Out Application Indemnity and Contribution +2 more

Case Brief

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Parties

MRCB BUILDERS SDN BHD

Plaintiff

PEMBINAAN LEEPING

1st Defendant

CHAN KAH WAI

2nd Defendant

CHAI YEE HIN

3rd Defendant

ZULBAHARI BIN ABU BAKAR

Third Party

Procedural Posture

Civil Construction Dispute With Interlocutory Third Party Proceedings / Interlocutory Application to Set Aside Third Party Notice / Strike Out Third Party Proceedings

Legal Issues

  1. 1 Whether the third party notice falls within O.16 r.1 Rules of Court 2012
  2. 2 Whether the pleadings disclose no reasonable cause of action under O.18 r.19(1)(a)
  3. 3 Whether the third party claim is scandalous, frivolous or vexatious or an abuse of process under O.18 r.19(1)(b),(c),(d)

Ratio Decidendi

The 2nd Defendant demonstrated a prima facie claim for contribution such that the third party notice and Statement of Claim against the Third Party were not obviously unsustainable; the court therefore refused to set aside the leave and dismissed the Third Party's application under O.16 r.6 and O.18 r.19(1)(a),(b),(c),(d), finding triable issues requiring full trial; conversely the Third Party's separate application against the 3rd Defendant succeeded because the 3rd Defendant did not plead a contribution claim.

Court Disposition

Third Party's application in encl.79 to set aside leave, third party notice and SoC dismissed; separate application (encl.81) against 3rd Defendant allowed (earlier decision)

Orders

  • Application in encl.79 dismissed with costs of RM3,500.00 to be paid by the Third Party to the 2nd Defendant, subject to standard allocator fees
  • Third Party and 2nd Defendant to proceed with the directions previously given for filing of Third Party's Defence and 2nd Defendant's Reply to Defence (as per court directions)