EUM Realty Sdn Bhd v Inter Formula (M) Sdn Bhd

Case Significance

Illustrates that where an issue turns on mixed questions of fact and law requiring evidence, a court is justified in refusing to try it as a preliminary point under Order 33 Rule 2, so that contingent applications to remove a party or strike out under Orders 15 and 18 also fail.

This decision of the High Court of Malaya at Shah Alam concerns an appeal under Order 55 Rule 5 of the Rules of Court 2012 by a third defendant, EUM Realty Sdn Bhd, against a Sessions Court decision dismissing its interlocutory application. That application, made under Order 33 Rule 2 and/or Order 15 Rule 6 and/or Order 18 Rule 19(1) of the Rules of Court 2012, had sought to have a preliminary question or issue in the plaintiff Inter Formula (M) Sdn Bhd's action tried first, and, on that footing, to have the third defendant removed as a party and the writ and statement of claim struck out as against it. The Sessions Court dismissed the application with costs in the cause, and the third defendant appealed.

The primary question on appeal was whether the Sessions Court had erred in refusing to determine the identified issue separately under Order 33 Rule 2. The High Court held it had not. The issue the appellant wished to have carved off — bearing on the basis of liability — involved mixed questions of fact and law, of the kind the authorities (including discussion of vicarious liability and organisational structure in the healthcare context) show are ill-suited to summary determination in advance of trial. Because such questions require evidence and cannot safely be resolved as a discrete preliminary point, the Sessions Court was justified in declining to try them separately. It followed that the appellant's further prayers to be removed as a party under Order 15 Rule 6 and to strike out the claim under Order 18 Rule 19(1) also failed, being contingent on a favourable determination under Order 33 Rule 2 that had neither been granted nor warranted. The court dismissed the appeal and ordered the appellant to pay costs of RM10,000.00 to the respondent. The judgment reinforces that Order 33 Rule 2 is a tool for isolating clean questions capable of disposing of a matter, not a route to pre-empt a trial on issues that are inseparable from the evidence, and that strike-out and party-removal relief cannot be bootstrapped onto a preliminary-issue application that itself fails.