SYARIKAT RODZIAH MALAYAN BANKING BERHAD

SYARIKAT RODZIAH MALAYAN BANKING BERHAD

The Court allowed the appeal and struck out the Plaintiff’s claim against the 2nd Defendant because the pleadings failed to particularise alleged fraud/conspiracy, the 2nd Defendant’s retainer was limited to preparing loan documentation (no duty to investigate SPA/valuations), the Plaintiff had taken inconsistent positions in earlier proceedings (debt recovery and dismissal for negligence) amounting to issue switching/forum shopping and estoppel, and on the facts the claim was an abuse of process or obviously unsustainable under Order 18 r.19 ROC 2012.

Citation
J-02(IM)(NCVC)-1371-07/2018 (Mahkamah Rayuan)
Parties
Appellant / 2nd Defendant: Syarikat Rodziah; Plaintiff / Respondent: Malayan Banking Berhad; 1st Defendant: Bahari And Co
Court
IM
Jurisdiction
Malaysia
Judgment Date
18 February 2019
Case Number
J-02(IM)(NCVC)-1371-07/2018 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal Against High Court Refusal to Strike Out (order 18 R.19 ROC 2012) / Court of Appeal Judgment (appeal Allowed)
Outcome
Appeal allowed; High Court order dismissing strike out application set aside; Plaintiff's claim against 2nd Defendant struck out
Legal Topics
Strike Out Application, Abuse of Process, Forum Shopping, Judicial Estoppel, Duty of Solicitors, Particulars of Fraud, Conditions Precedent
Source Language
Malay/English
Civil Procedure Contract Tort Professional Negligence Banking Law Equity Strike Out Application Abuse of Process +5 more

Case Brief

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Parties

Syarikat Rodziah

Appellant / 2nd Defendant

Malayan Banking Berhad

Plaintiff / Respondent

Bahari And Co

1st Defendant

Procedural Posture

Civil Appeal Against High Court Refusal to Strike Out (order 18 R.19 ROC 2012) / Court of Appeal Judgment (appeal Allowed)

Legal Issues

  1. 1 Whether the 2nd Defendant owed a duty to verify SPA or valuation reports before preparing loan documents
  2. 2 Whether the Plaintiff's claim was scandalous, frivolous or vexatious or otherwise an abuse of process
  3. 3 Whether particulars of fraud and conspiracy against the 2nd Defendant were sufficiently pleaded

Ratio Decidendi

The Court allowed the appeal and struck out the Plaintiff’s claim against the 2nd Defendant because the pleadings failed to particularise alleged fraud/conspiracy, the 2nd Defendant’s retainer was limited to preparing loan documentation (no duty to investigate SPA/valuations), the Plaintiff had taken inconsistent positions in earlier proceedings (debt recovery and dismissal for negligence) amounting to issue switching/forum shopping and estoppel, and on the facts the claim was an abuse of process or obviously unsustainable under Order 18 r.19 ROC 2012.

Court Disposition

Appeal allowed; High Court order dismissing strike out application set aside; Plaintiff's claim against 2nd Defendant struck out

Orders

  • Enclosure 15 (application to strike out Plaintiff's claim against 2nd Defendant) allowed under Order 18 r.19(1)(b),(c),(d) ROC 2012
  • Order and decision of the High Court dated 3 June 2018 set aside