Mohammed Shabaz Khan v 1. ) Crest Worldwide Resources Sdn Bhd (In Liquidation) 2. ) Shamir Kumar Nandy

Case Significance

Illustrates the high threshold for striking out an originating summons and for expunging affidavit evidence, and the court's reluctance to shut out a claim summarily where the case is not a plain and obvious one for such relief.

This High Court decision at Kuala Lumpur concerns an application by the second defendant to strike out an originating summons in its entirety or, in the alternative, to expunge certain paragraphs of the plaintiff's supporting affidavit. The underlying dispute arose from a series of transactions involving a single property, a unit on the twenty-ninth floor of a Kuala Lumpur residence, which, through a sequence of commercial dealings, appeared to have been sold, pledged and resold. The plaintiff, a foreign national, had brought the originating summons seeking relief in relation to that property under provisions of the Specific Relief Act 1950, and the first defendant was a company in liquidation while the second defendant was its former managing director. By the present application the second defendant sought to have the whole proceeding struck out, and, failing that, to have the impugned paragraphs of the plaintiff's affidavit expunged. The court examined whether the originating summons disclosed a proceeding that ought to be struck out and whether the challenged affidavit evidence was liable to be expunged. It was not persuaded that either form of relief was warranted: the matter was not a plain and obvious case for striking out, and the affidavit paragraphs did not meet the standard for being expunged. The court accordingly dismissed the second defendant's application, ordering the second defendant to pay costs of RM12,000 to the plaintiff, subject to allocatur. The court's approach confirms that striking out is a draconian step reserved for cases in which the claim is obviously unsustainable, and that a court will not deprive a party of a hearing on the merits, or excise parts of the evidence, unless the case for doing so is clear; a defendant who fails to meet that high standard will bear the costs of the application. The judgment is a useful illustration of the high threshold for striking out an originating summons and for expunging affidavit evidence, and of the court's reluctance to shut out a claim summarily where the case is not plain and obvious.