FARINA BINTI FARIKHULLAH KHAN v NASUTION BIN MOHAMED

Case Significance

Illustrates how the civil High Court tests, at the pleading stage, whether a dispute falls exclusively within Syariah jurisdiction before it will strike out a claim on jurisdictional grounds.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Rozi binti Bainon, resolves competing interlocutory applications in a civil suit between former spouses concerning a jointly owned house and a refinancing facility taken with Bank HSBC Malaysia Berhad. The plaintiff sought orders that the defendant restore and maintain the status quo of the property free of the refinancing charge by making full settlement to the bank, repay instalments the plaintiff had paid, and bear accrued charges and interest. The plaintiff's case was that the house had been fully paid before the parties were persuaded to refinance it under a Homesmart-i (Diminishing Musharakah) facility, and that the refinancing had been entered into on the strength of trust reposed in the defendant.

Two applications were before the Court. The plaintiff applied under Aturan 18 kaedah 19(1) Kaedah-Kaedah Mahkamah 2012 (Order 18 rule 19(1) of the Rules of Court 2012) to strike out particular paragraphs of the amended defence, while the defendant applied to strike out the plaintiff's entire claim on the ground that the civil High Court had no jurisdiction because the dispute should be heard in the Syariah High Court. The Court had already dismissed that jurisdictional objection once, and the defendant had reintroduced the same subject matter into the pleadings.

Applying the approach in Hartecon JV and related authority, the Court framed the test as follows: on a striking-out application the court examines the exact nature of the relief sought and the plaintiff's supporting affidavit and asks whether, assuming the pleaded facts to be true, the matter would fall exclusively within the jurisdiction of the Syariah High Court; only if the answer is yes does the matter fall outside the civil court's jurisdiction. The Court held that the plaintiff's claim did not fall exclusively within Syariah jurisdiction. It allowed the plaintiff's application (Kandungan 40) with costs in the cause, and held that the defendant could not amend the identified paragraphs of the defence to plead that the civil court lacked jurisdiction, and that transferring the claim to be heard together with an action in the Syariah High Court would be improper. The decision is a clear illustration of how the civil courts police the boundary of Syariah jurisdiction at the pleading stage.