A.M.G GALLERY (M) SDN BHD v YAYASAN AL AIM

Case Significance

Illustrates that a holding-over tenant with no triable defence may be summarily ordered to give vacant possession under Order 14, with a defence and counterclaim disclosing no reasonable cause of action struck out under Order 18 rule 19.

This High Court decision at Kuala Lumpur concerns consolidated civil appeals against a Sessions Court's grant of summary judgment and the striking out of a defence and counterclaim in a landlord-and-tenant dispute. The respondent, Yayasan Al Aim, as landlord and registered lessee of land on Jalan Tun Razak, had sued the appellant, A.M.G Gallery (M) Sdn Bhd, as tenant, seeking vacant possession of the premises following the expiry and termination of the tenancy, the tenancy having continued on a month-to-month holding-over basis. The Sessions Court entered summary judgment under Order 14 of the Rules of Court 2012 and struck out the tenant's defence and counterclaim under Order 18 rule 19(1)(b), (c) and (d). On appeal the court applied the settled summary-judgment principles drawn from authorities including National Company for Foreign Trade v Kayu Raya Sdn Bhd and Bank Negara Malaysia v Mohd Ismail Ali Johor, together with the striking-out principles in Bandar Builder Sdn Bhd v United Malayan Banking Corporation. It held that the landlord had shown there was no triable issue: the tenancy had ended and the tenant remained in occupation without a sustainable defence, and the counterclaim, including an unproven claim for RM500,000, disclosed no reasonable cause of action and was frivolous. The court found this a plain and obvious case for both summary judgment under Order 14 and striking out under Order 18 rule 19. Accordingly it dismissed both appeals against the Sessions Court's decision with costs of RM5,000 for the two appeals. The judgment is a useful example of a holding-over tenant being summarily ordered to give vacant possession where no triable defence is disclosed. The court also rejected the tenant's attempt to keep the dispute alive through an unsubstantiated counterclaim, holding that a bare monetary claim unsupported by evidence cannot manufacture a triable issue where the landlord's right to possession is otherwise clear on the expiry of the tenancy, and that summary disposal in such circumstances serves rather than defeats the interests of justice.