TEO PIK TAU v JB CITYTOWERS SDN BHD

Case Significance

Illustrates the striking-out jurisdiction where a claim is obviously unsustainable on its face and the consequential treatment of an amendment application rendered academic by the striking out.

This High Court decision at Johor Bahru concerns an application to strike out a claim for a brokerage commission and a cross-application to amend the statement of claim, and it turns on whether the pleaded claim was sustainable on its face. The plaintiff alleged that in about November 2018 he had introduced a parcel of land in Johor Bahru to a company, that the defendant and that company subsequently entered into a sale and purchase transaction under which the land was transferred, and that he had been promised a brokerage commission of RM7,325,779.28 by the defendant, which the defendant then failed or refused to pay despite repeated demands and an alleged agreement prepared by the defendant's solicitors regarding payment. The defendant filed a defence denying the existence of any brokerage contract or commission, and applied under Order 18 rule 19(1)(a), (b) and (d) of the Rules of Court 2012 to strike out the writ and statement of claim as disclosing no reasonable cause of action, being scandalous, frivolous or vexatious, or otherwise an abuse of process; the plaintiff, for his part, applied under Order 20 to amend the statement of claim. The court, guided by authority on the striking-out jurisdiction such as Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang, considered whether the claim was so obviously unsustainable on its face that it should not proceed to trial. Having examined the pleaded case, including the terms said to govern the facilitation cost and the scheduled net service fees, the court was satisfied that the plaintiff's writ and statement of claim were plainly and obviously unsustainable on their face and that there was no need to burden the court with a trial calling witnesses. It allowed the defendant's striking-out application with costs and, that determination having disposed of the action, dismissed the plaintiff's amendment application as academic, with no order as to costs; the plaintiff appealed. The judgment is a useful illustration of the striking-out jurisdiction where a claim is obviously unsustainable on its face and of the consequential treatment of an amendment application rendered academic.