RDS Successfully Set Aside The Striking Out Application Filed Against SRC International’s Claim
Our Dispute Resolution partner, Syafinaz Vani successfully defended an application by UMNO (the Defendant) to strike out a RM16 million claim filed by SRC International Sdn Bhd (SRC) and its subsidiaries against the Defendant. Syafinaz was assisted by associate, Clarence Hng Ying Hui.
On 7.5.2021, SRC and its subsidiaries initiated an action against the Defendant to, inter alia, recover the sum of RM16 million which was wrongfully received by the Defendant from one of SRC’s subsidiaries.
On 24.8.2021, the Defendant filed an application to strike out the Writ and Statement of Claim (Striking Out Application) premised on the following grounds:
a) the Defendant was wrongly sued as the public officer of the Defendant was not named in the
b) SRC’s claim was time barred.
c) Knowing receipt is not a reasonable cause of action.
d) Material facts were not pleaded in the statement of claim.
Upon discovering the existence of the public officer as averred by the Defendant in its affidavit in support of the Striking Out Application (an information which is not privy to SRC at the time of filing of the suit), SRC filed an amendment application to amend the Writ and Statement of Claim to substitute the office bearers with the public officer of the Defendant (Amendment Application).
Both Defendant’s Striking Out Application and SRC’s Amendment Application were fixed for hearing today, 10.11.2021.
Upon hearing the submissions by the counsel for SRC and the Defendant, the High Court dismissed the Defendant’s Striking Out Application and allowed SRC’s Amendment Application on the following grounds:
a) It is trite that if an amendment can save the pleading, the amendment ought to be allowed and the claim ought not to be struck out. Since the inaccuracy in the naming of the officer bearer instead of the public officer can be cured by way of amendment, SRC should be allowed to amend the Writ and Statement of Claim to name the public officer. Furthermore, the failure to name the public officer at the time the suit was filed is not attributable to SRC as SRC was not privy to the said information.
b) In respect of the other grounds relied on by the Defendant in its Striking Out Application, the High Court held that SRC has successfully established that its claim is not obviously unsustainable so as to warrant a striking out. The High Court was satisfied that there are triable issues which can only be determined during trial.
This decision enables SRC to fully ventilate the claim and prove the elements of the claim at full trial to recover the sum of RM16 million which SRC claims had unlawfully been channelled to the Defendant.
10 November 2021
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