RAVENDRAN A/L KALANGIAM v ALLIANZ GENERAL INSURANCE COMPANY (M) BERHAD
Outcome
CONCLUSION [65] For these reasons, my answer to the sole agreed issue to be tried—whether P has proven, on the balance of probabilities, that there was evidence of fraud on the part of D (the insurer) to impeach and hence set aside the section 96(3) Declaratory Order—is No. [66] As such, I dismiss P’s claim with costs of RM40K to be paid by P to the D. Costs are subject to the allocatur.
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Judges (1)
Counsel (5)
Case Significance
Illustrates the heavy burden on a party seeking to set aside a section 96(3) Road Transport Act 1987 declaratory order collaterally on the ground of fraud: consistent with Badiaddin, a subsisting court order is impeached only on clearly proven fraud or nullity, and the plaintiff having failed to prove fraud, the claim was dismissed with costs.
This High Court decision at Penang, delivered by Judge Kenneth St James after a full trial, concerns an attempt to set aside a motor-insurance declaratory order on the ground of fraud. The plaintiff had been injured in a motorcycle accident and sued the rider and owner of the other motorcycle, who were insured by the defendant insurer, Allianz General Insurance Company (M) Berhad. The insurer had earlier obtained, under section 96(3) of the Road Transport Act 1987, a declaratory order from the Kuala Lumpur High Court declaring the policy of insurance between it and the rider and owner void and unenforceable; the plaintiff had been permitted to intervene and participate in those proceedings. In the present suit the plaintiff sought to challenge the validity of that section 96(3) declaratory order, alleging that it had been obtained through fraud on the part of the insurer.
The court dismissed the plaintiff's claim. The decisive question was whether the plaintiff had proved, on the balance of probabilities, that there was evidence of fraud on the part of the insurer sufficient to impeach and set aside the section 96(3) declaratory order. Consistent with the principle in Badiaddin bin Mohd Mahiddin v Arab Malaysian Finance, a subsisting order of a court of competent jurisdiction may be collaterally set aside only on a clearly established ground such as fraud or nullity, and the burden of proving fraud rested squarely on the plaintiff under section 101 of the Evidence Act 1950. The court answered that question in the negative: the plaintiff had not established fraud on the insurer's part. It accordingly dismissed the claim and ordered the plaintiff to pay the insurer costs of RM40,000, subject to allocatur. The judgment illustrates the heavy burden on a party seeking to set aside a section 96(3) declaratory order collaterally, and that mere assertion of fraud, unproven, will not disturb a subsisting court order.
What did the plaintiff have to prove to set aside the section 96(3) declaratory order?
The plaintiff had to prove, on the balance of probabilities and bearing the burden under section 101 of the Evidence Act 1950, that the insurer had obtained the section 96(3) declaratory order through fraud. Consistent with Badiaddin, a subsisting court order can be set aside collaterally only on a clearly established ground such as fraud or nullity.
How did the court rule on the allegation of fraud?
The court answered the fraud question in the negative, holding that the plaintiff had not established fraud on the part of the insurer. It accordingly dismissed the plaintiff's claim and ordered the plaintiff to pay the insurer costs of RM40,000, subject to allocatur.
Statutes Cited
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Judgment
Read the full judgment on the official Malaysia Courts portal.
Read on eJudgmentSource: eJudgment (pa-22ncvc-211-11-2020)