Oliver Yap Chee Fong v Tracy Tan Wai Mei

Case Significance

Illustrates that a claimant in the tort of conspiracy must plead personal, actionable loss, the court striking out a claim to recover cryptocurrency-scheme losses that, on the pleadings, were suffered by third-party investors rather than the plaintiff, since a trial cannot cure a pleading disclosing no cause of action.

This High Court decision concerns an application to strike out a claim under Order 18 rule 19(1)(a) of the Rules of Court 2012 on the ground that the pleadings disclosed no reasonable cause of action. The plaintiff pleaded that he had opened a bank account and handed the bank card to his cousin, that the account was then used by his cousin and the defendant in connection with a cryptocurrency investment scheme involving unnamed third-party investors, that the scheme failed causing losses of about RM1 million, and that the defendant and the cousin had conspired to defraud the investors. He sought to recover those losses from the defendant. Confining itself, as it must on such an application, to the pleaded statement of claim taken at its highest and assuming the pleaded facts to be true, the court held that the alleged losses had been suffered by the third-party investors and not by the plaintiff himself: nowhere did the statement of claim assert that the money belonged to the plaintiff, that he had suffered any quantifiable loss, or that he had incurred any liability to compensate the investors. The court held that only a party who has suffered actionable loss may maintain a civil claim, that in the tort of conspiracy the absence of pleaded personal loss is fatal, and that a conspiracy claim, like fraud, must be pleaded distinctly and properly. Since a trial cannot cure a pleading that fundamentally discloses no cause of action, and requiring the defendant to undergo a full trial in such circumstances would undermine procedural justice and judicial economy, the court allowed the application and struck out the writ and statement of claim with costs of RM3,000, while noting that the defendant's counterclaim survived as an independent proceeding. The judgment illustrates that a conspiracy claimant must plead personal, actionable loss.