YEOH ENG KONG v 1. ) BUNGSAR HILL HOLDINGS SDN BHD 2. ) SYARIKAT PERUMAHAN PEGAWAI KERAJAAN SDN BHD 3. ) PENDAFTAR HAKMILIK WILAYAH PERSEKUTUAN, KUALA LUMPUR 4. ) TETUAN TOMMY THOMAS 5. ) TETUAN THANGARAJ & ASSOCIATES

Case Significance

Illustrates the economical use of Order 33 rule 5 of the Rules of Court 2012 to dispose of residual claims that cannot survive the striking out of related claims on res judicata grounds, and confirms that there is generally no basis to sue the solicitors who acted for an opposing party.

This High Court decision in Kuala Lumpur concerns the use of Order 33 rule 5 of the Rules of Court 2012 to dispose of claims that have become untenable once related claims have been struck out. The plaintiff had sued a number of defendants, including two companies, the Registrar of Titles and two firms of solicitors who had acted for opposing parties. The claims against the first, fourth and fifth defendants had already been struck out on the grounds of res judicata and abuse of the process of the court, the underlying dispute having been decided against the plaintiff after a full trial in an earlier suit and upheld on appeal. These grounds address the position of the second and third defendants. Order 33 rule 5 permits the court, where the decision of a separately tried question substantially disposes of the cause or renders a trial unnecessary, to dismiss the action or make such other order as is just. The court held that its earlier decision striking out the claims against the other defendants had substantially disposed of the plaintiff's cause against the second and third defendants as well, so that the plaintiff had no reasonable cause of action left to pursue against them. It observed that the case was, at bottom, one in which the plaintiff had failed to perform a settlement agreement, that there was no basis to sue the solicitors who had acted for the opposing side, and no basis for the allegation of conspiracy, rendering the claim obviously unsustainable; it also addressed the removal of private caveats, noting that only a person with a registrable interest may enter one and that a caveator may be liable to pay compensation under section 329 of the National Land Code if a caveat is wrongfully entered. The claim against the second and third defendants was accordingly disposed of. The judgment illustrates the economical use of Order 33 rule 5 to bring an end to residual claims that cannot survive the striking out of the rest of an action.