1. ) Tey Chin Soon 2. ) Tey Chin Hui 3. ) Tey Chin Pei 4. ) Gan Mui Eng @ Gan Pin v 1. ) Tey Chin Hong 2. ) Tan Yook Hua

Case Significance

Instructive on the selective striking out under Order 18 rule 19 of scandalous, irrelevant or res judicata averments in a family estate dispute, while preserving genuinely triable pleaded issues such as contribution and proprietary estoppel.

This High Court decision at Johor Bahru concerns an application to strike out parts of a statement of defence and counterclaim under Order 18 rule 19 of the Rules of Court 2012, in a family dispute over a deceased's estate. The plaintiffs and the defendants were members of one family: three of the plaintiffs and the first defendant were siblings, the second defendant their mother, and one plaintiff their grandmother. The dispute arose after the family's father went missing and was later declared presumed dead by the High Court, following which letters of administration for the estate were granted to the first defendant and a distribution order was made, with property transfers ensuing. The plaintiffs applied to strike out various paragraphs of the defendants' pleading on the grounds that, if allowed to remain, they would prejudice the fair and expeditious determination of the claim, being irrelevant, scandalous, frivolous or vexatious, while the defendants contended that they were entitled to plead their defence and counterclaim in answer to a claim that was not straightforward. The court, per Dr Noradura binti Hamzah JC, allowed the application in part. It accepted that some averments were relevant and should be retained for trial, including those going to contribution, proprietary estoppel, the background of the estate, and expenses allegedly incurred in relation to the property, whose limitation was a matter for trial, together with parts of the counterclaims capable of proper determination at trial. It struck out other paragraphs as irrelevant or scandalous, including those concerning collateral family disputes and personal issues, post-death matters, an averment of the defendants' distrust of the plaintiff, and matters already determined by the court and therefore res judicata, which carried no probative value. The court also struck out from the record a rejoinder that had been filed without leave and out of time. It ordered the identified paragraphs struck out and dismissed the application as to the others, with costs of RM5,000 jointly and severally. The judgment is instructive on the selective striking out of scandalous or irrelevant averments while preserving genuinely triable pleaded issues.