1. ) BUILTAMONT INTERNATIONAL SDN. BHD. 2. ) WONG YEON CHAI v ZAHILAH BINTI ABDUL WAHAB

Case Significance

Grants summary judgment under Order 14 and dismisses a strike-out under Order 18 rule 19, holding that a defence of illegality and res judicata was misconceived because section 42 of the Contracts Act 1950 permitted the plaintiff to accept performance of a consent order from the defendant as a third person.

This High Court (Kuala Lumpur) decision determines two cross-applications in a civil suit: the plaintiffs' application for summary judgment under Order 14 of the Rules of Court 2012, and the defendant's application to strike out the plaintiffs' claim under Order 18 rule 19 of the same Rules. The court set out both provisions, noting that Order 14 allows a plaintiff to apply for judgment where the defendant has no defence to the claim, while Order 18 rule 19 allows the striking out or amendment of a pleading that discloses no reasonable cause of action or defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay a fair trial, or is otherwise an abuse of the process of the court, with no evidence admissible on an application under limb (a).

The dispute arose from a letter of undertaking signed by the defendant, and the defendant's resistance rested on defences of illegality and res judicata. The court examined section 42 of the Contracts Act 1950, which provides that when a promisee accepts performance of a promise from a third person, the promisee cannot afterwards enforce it against the promisor. Applying that provision, the court reasoned that the law permitted the plaintiff to accept performance of a consent order from the defendant as a third person, so that there was no illegality in the object or consideration of the letter of undertaking signed by the defendant.

On that analysis the court held that the defendant's defence of illegality and res judicata was misconceived, that it did not amount to a defence to the plaintiff's claim, and that it did not amount to a factor justifying the striking out of the plaintiff's claim under Order 18 rule 19. In the result the court allowed the plaintiff's application for summary judgment against the defendant with costs of RM5,000, and dismissed the defendant's application to strike out the claim with costs of RM3,000. The judgment illustrates the interplay between summary judgment and striking out where the pleaded defences of illegality and res judicata are found to be unsustainable.