SAVILLS (MALAYSIA) SDN. BHD. v 1. ) Dato Jeyaraj A/l V. Ratnaswamy 2. ) DISTRICT GRAND LODGE OF THE EASTERN ARCHIPELAGO 3. ) CHRIS TEH TEONG KHUAN 4. ) EXSIM DEVELOPMENT SDN BHD 5. ) CHRISTOPHER MARTIN BOYD

Case Significance

Illustrates that a claim framed against an office-holder in his personal capacity will be struck out under Order 18 rule 19 of the Rules of Court 2012 where the pleadings plead no material facts sustaining personal liability, the court confining him to being sued in his representative capacity.

This High Court decision concerns an application by a defendant to strike out a claim brought against him in his personal capacity, in a suit by a licensed estate agent for agency commission arising from the sale of a property. The plaintiff, a registered estate agent, had been engaged to market a property owned by the second defendant, a society registered under the Societies Act 1966, and sued for the agreed commission or, alternatively, the estate-agency fees prescribed by the regulatory board, pleading causes of action in conspiracy, unjust enrichment and bad faith. The first defendant, who had served as the head of the second defendant society at the material time, was sued both in his personal capacity and in his representative capacity, and applied under Order 18 rule 19(1)(a) and (d) of the Rules of Court 2012 to strike out the personal-capacity claim and to have the statement of claim amended to reflect that he was sued solely in his representative capacity. Applying the settled principle from Bandar Builder Sdn Bhd that striking out is confined to plain and obvious cases and is not to be used for a minute examination of the merits, the court examined whether the pleadings disclosed any bona fide cause of action against the first defendant personally. It found none: the pleadings were devoid of material facts capable of sustaining personal liability or raising any serious triable issue, so that the personal-capacity claim disclosed no reasonable cause of action and constituted an abuse of process. The court accordingly allowed the striking-out application, ordered that the statement of claim be amended to reflect that the first defendant is sued solely in his representative capacity, and awarded costs of RM5,000. The judgment illustrates when an office-holder can be relieved of a personally framed claim that pleads no basis for personal liability.