TOHTONKU SDN BHD v S.L. NG TRADING AGENCY SDN BHD

Case Significance

Illustrates the court's insistence on compliance with the pleading rules and the striking-out remedy, with liberty to refile, where a statement of claim is so defective that it would embarrass a fair trial.

This High Court decision at Kuala Lumpur concerns the striking out of a statement of claim for serious non-compliance with the pleading rules, in a commercial dispute between two companies arising from a distribution agreement. Rather than deciding the merits of the underlying claim, the court addressed the manner in which the statement of claim had been drafted, holding that it so flouted the requirements of the Rules of Court 2012 that it would prejudice, embarrass and delay a fair trial of the action. The court observed that the pleading was unusual from the outset, beginning with an index of its contents rather than by introducing the parties, and that a review of that index revealed that the pleading had breached the basic rules of drafting. A recurring flaw was the failure to plead material facts with the necessary particularity: for example, under the head dealing with the distribution agreement, the pleading referred only generally to the distribution of goods described merely as 'trade goods' without identifying what goods were to be supplied, contrary to the requirement in Order 18 rule 7 that every pleading contain, in summary form, the material facts on which the party relies, and only those facts rather than the evidence. The court took the view that the defects were so pervasive that the ordinary remedy of directing amendment would not suffice, and that the statement of claim required not amendment but wholesale replacement in order to secure the just, expeditious and economical disposal of the case. Exercising its power to control its own process, the court struck out the plaintiff's claim, but did so with no order as to costs and with liberty to the plaintiff to file a fresh, properly drafted claim. The judgment is a useful illustration of the court's insistence on compliance with the pleading rules, the function of a statement of claim in defining the issues fairly, and the striking-out remedy where a pleading is so defective that it would embarrass a fair trial.