Vivaganth Santharasilan v.

[2019] 1 CLJ Public Bank Bhd 605

A VIVAGANTH SANTHARASILAN v. PUBLIC BANK BHD

COURT OF APPEAL, PUTRAJAYA
ROHANA YUSUF JCA
VERNON ONG LAM KIAT JCA
HASNAH MOHAMMED HASHIM JCA
B
[CIVIL APPEAL NO: W-02(IM)(NCVC)-2133-11-2016]
4 JULY 2018

CIVIL PROCEDURE: Striking out – Grounds for – Plaintiff successfully annulled

receiving and adjudication order and sued bank for malicious prosecution – Whether
C claim for civil malicious prosecution sustainable and actionable tort – Whether
failure by bank to appeal against annulment order tantamount to admission –
Whether court could conduct minute examination of documents – Whether
plaintiff’s action fell under O. 18 r. 19 of Rules of Court 2012 – Whether summary
process of striking out pleadings suitable
D
The respondent (‘defendant’) issued a bankruptcy notice against the appellant
(‘plaintiff’) premised on an indebtedness. The defendant subsequently
obtained a receiving order and adjudication order (‘ROAO’) against the
plaintiff. The ROAO was successfully annulled by the plaintiff and the
defendant did not appeal against the annulment order. Thereafter, the
E plaintiff filed an action against the defendant for damages for: (i) tort of civil
malicious prosecution for maliciously bringing bankruptcy proceedings
against the plaintiff; (ii) negligence; and (iii) abuse of process of court.
However, the defendant successfully struck out the plaintiff’s suit pursuant
to O. 18 r. 19 of the Rules of Court 2012 (‘ROC’) on the grounds that the
F plaintiff’s action did not disclose any reasonable cause of action, was
scandalous, frivolous or vexatious and was otherwise an abuse of the process
of the court. Hence, appeal by the plaintiff on the grounds, inter alia: (i) the
plaintiff’s claim for civil malicious prosecution was sustainable and an
actionable tort; (ii) the fact that the defendant did not appeal against the
G annulment order tantamount to the defendant’s admission that the
bankruptcy proceedings against the plaintiff was an abuse of process and that
the defendant did not have the right to commence the bankruptcy
proceedings in the first place. Hence, it was not a plain and obvious case to
be dismissed summarily.
H Held (allowing appeal with costs in the cause)
Per Vernon Ong Lam Kiat JCA delivering the judgment of the court:
(1) The tort of malicious prosecution is a common law wrong. The
individual who is aggrieved by legal proceedings improperly instituted
against him may sue for damages for the tort of malicious prosecution.
I Under the English law, the tort of malicious prosecution is limited to
malicious institution of criminal prosecutions and is not generally
available in civil proceedings. It has, however, been extended to civil
606 Current Law Journal [2019] 1 CLJ

claims which constitute special cases of legal process such as the A

malicious prosecution of a petition in bankruptcy or the malicious
presentation of a winding-up petition. (paras 12 & 13)
(2) This was not a plain and obvious case for the court to exercise its power
of striking out the statement of claim. The plaintiff’s cause of action was
B
predicated on the tort of maliciously instituting civil proceedings. It was
pleaded that the defendant had maliciously instituted bankruptcy
proceedings against the plaintiff. The statement of claim, as it stood, was
not insufficient, even if proved, to entitle the plaintiff to his claim.
(para 14)
C
(3) In a summary process under O. 18 r. 19 of the ROC, the court should
not conduct a minute examination of the documents and facts in order
to ascertain whether the plaintiff has a cause of action. The trial judge
ought not to have conducted a minute examination of the documents and
facts of the case in arriving at his finding. Hence, the appeal fell within
D
the special cases of legal process such as the malicious prosecution of a
petition in bankruptcy. As such, the summary process of striking out the
pleadings was not suitable and the matter should proceed to full trial to
be decided on viva voce and documentary evidence. (paras 15 & 16)
Bahasa Malaysia Headnotes
E
Responden (‘defendan’) mengeluarkan notis kebankrapan terhadap perayu
(‘plaintif’) berasaskan keberhutangan. Defendan kemudian memperoleh
perintah penerimaan dan perintah penghakiman (‘ROAO’) terhadap plaintif.
Perintah penerimaan dan perintah penghakiman tersebut berjaya dibatalkan
oleh plaintif dan defendan tidak merayu terhadap perintah pembatalan itu. F
Kemudian, plaintif memfailkan tindakan terhadap defendan untuk ganti rugi
untuk: (i) tort pendakwaan niat jahat sivil kerana memulakan prosiding
kebankrapan dengan niat jahat terhadap plaintif; (ii) kecuaian; dan
(iii) penyalahgunaan proses mahkamah. Walau bagaimanapun, defendan
berjaya membatalkan guaman plaintif menurut A. 18 k. 19 Kaedah-Kaedah
G
Mahkamah 2012 (‘KKM’) atas alasan-alasan tindakan plaintif tidak
mendedahkan kausa tindakan munasabah, remeh, semberono atau
menyusahkan dan sebaliknya penyalahgunaan proses mahkamah. Oleh itu,
plaintif merayu atas alasan-alasan, antara lain: (i) tuntutan plaintif untuk
pendakwaan niat jahat boleh dikekalkan dan boleh diambil tindakan dalam
tort; (ii) fakta bahawa defendan tidak merayu terhadap perintah pembatalan H
menunjukkan defendan mengakui prosiding kebankrapan terhadap plaintif
adalah satu penyalahgunaan proses dan defendan tiada hak, dari awal lagi,
untuk memulakan prosiding kebankrapan. Oleh itu, ini bukan kes yang jelas
untuk ditolak terus.
I
 Vivaganth Santharasilan v.
[2019] 1 CLJ Public Bank Bhd 607

A Diputuskan (membenarkan rayuan dengan kos dalam kausa)

Oleh Vernon Ong Lam Kiat HMR menyampaikan penghakiman
mahkamah:
(1) Tort pendakwaan niat jahat adalah kesalahan common law. Individu
yang terkilan dengan prosiding undang-undang yang dimulakan secara
B
salah terhadapnya boleh menyaman untuk ganti rugi untuk tort
pendakwaan berniat jahat. Bawah undang-undang Inggeris, tort
pendakwaan niat jahat terhad pada permulaan pendakwaan jenayah
dengan niat jahat dan tidak, secara amnya, wujud dalam prosiding sivil.
Walau bagaimanapun, perkara ini dilanjutkan pada tuntutan sivil yang
C membentuk kes khas proses undang-undang seperti pendakwaan niat
jahat untuk petisyen kebankrapan atau pengemukaan petisyen
penggulungan dengan niat jahat.
(2) Ini bukan kes jelas untuk mahkamah melaksanakan kuasa pembatalan
pernyataan tuntutan. Kausa tindakan plaintif berdasarkan atas tort
D
memulakan prosiding sivil dengan niat jahat. Diplidkan bahawa
defendan telah memulakan prosiding kebankrapan dengan niat jahat
terhadap plaintif. Pernyataan tuntutan, seadanya, bukanlah tidak
mencukupi, walaupun dibuktikan, untuk memberikan plaintif apa yang
dituntut.
E
(3) Dalam proses terus bawah A. 18 k. 19 KKM, mahkamah tidak boleh
menjalankan penilaian terperinci dokumen-dokumen dan fakta-fakta
untuk menentukan sama ada plaintif mempunyai kausa tindakan. Hakim
bicara tidak sepatutnya menjalankan penilaian terperinci dokumen-
dokumen dan fakta-fakta kes dalam mencapai keputusannya. Oleh itu,
F
rayuan ini terangkum dalam proses undang-undang kes khas seperti
pendakwaan niat jahat petisyen kebankrapan. Oleh itu, proses terus
pembatalan pliding tidak sesuai dan perkara tersebut tidak sepatutnya
diteruskan ke perbicaraan penuh untuk diputuskan secara viva voce dan
keterangan dokumentar.
G
Case(s) referred to:
Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993]
4 CLJ 7 SC (refd)
Customs and Excise Commissioners v. Barclays Bank Plc [2006] 4 All ER 256 HL (refd)
Gregory v. Portsmouth City Council [2000] 1 All ER 560 HL (refd)
H Jaafar Mohd Khalid v. Hong Leong Bank Bhd [2013] 8 CLJ 869 CA (refd)
KHK Advertising Sdn Bhd v. Siera Management Sdn Bhd (In Liquidation) [2018] 8 CLJ
423 CA (refd)
Mohamed Yusop Abdul Wahab v. American Express (M) Sdn Bhd [2002] 7 CLJ 81 HC
(refd)
Moscow Narodny Bank Ltd v. Ngan Ching Wen [2004] 2 CLJ 241 FC (refd)
I Rawther v. Abdul Kareem [1966] 1 LNS 154 FC (refd)
RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665 FC (refd)
Tetuan Bee Ling & Co lwn. Vijendran Ponniah [2010] 6 CLJ 643 CA (refd)
Willers v. Joyce & Anor [2016] UKSC 43 (refd)
608 Current Law Journal [2019] 1 CLJ

Legislation referred to: A

Civil Law Act 1956, s. 3
Rules of Court 2012, O. 18 r. 19, O. 33 r. 2
Other source(s) referred to:
Bullen & Leake & Jacob’s Precedents of Pleadings, 14th edn vol 1, para 2-06
For the appellant - S Surendran; M/s Ranuga, Yogeswari & Surendran B
For the respondent - Barry Goh Meng Yew; M/s Iza Ng Yeoh & Kit

[Editor’s note: Appeal from High Court, Kuala Lumpur; Civil Suit No: WA-22NCVC-127-
03-2016 (overruled).]

Reported by S Barathi C

JUDGMENT
Vernon Ong Lam Kiat JCA:
Introduction D

[1] This is an appeal against the decision of the High Court in allowing
the defendant’s application to strike out the plaintiff’s suit pursuant to O. 18
r. 19 of the Rules of Court 2012 on the grounds that the plaintiff’s action does
not disclose any reasonable cause of action, is scandalous, frivolous or
vexatious, and is otherwise an abuse of the process of court. After hearing E
of submission, we allowed the appeal. We now set out our grounds of
decision. In this judgment, the parties shall be referred to as they were in the
court below.
The Salient Facts
F
[2] The following facts are not really in dispute.
(a) In 2007, the plaintiff together with one Selvaletchumi a/p Sivamoorthy
(‘Selvaletchumi’) (jointly referred to as ‘the borrowers’) obtained a
housing loan of RM96,600 from the defendant bank;
G
(b) Due to the default in the instalment payments, the defendant sued and
obtained judgment in default of appearance for RM98,487.81 against the
borrowers on 6 July 2009;
(c) On 21 February 2012, the property which was secured to the loan
facility was foreclosed for RM73,900; H

(d) On 10 September 2012, the plaintiff wrote to the defendant pleading

with the defendant not to take any further action as he was in the process
of looking for part-time work and that he will consider repayment once
he gets work;
I
(e) The defendant replied to the plaintiff on 21 September 2012 stating that
they will withhold legal action against the plaintiff “only at judgment
stage subject to prompt repayment of RM500 per month with effect from
 Vivaganth Santharasilan v.
[2019] 1 CLJ Public Bank Bhd 609

A 28 September 2012 ...”. The defendant also stated that they “shall
proceed with the bankruptcy action against another co-borrower Ms
Selvaletchumi a/p Sivamoorthy immediately and to proceed with
bankruptcy action against you if you failed to comply with the above
condition (1)”;
B
(f) Subsequently, there followed an exchange of letters between the plaintiff
and the defendant;
(g) Meanwhile, on 8 October 2012, the defendant issued a bankruptcy
notice against the plaintiff premised on an indebtedness of
RM78,844.70;
C
(h) On 22 October 2012, the defendant wrote to the plaintiff stating inter alia
that the defendant would proceed with bankruptcy action if they did not
receive the September and October 2012 payment amounting to
RM1,000 by 28 October 2012;
D (i) Meanwhile, the plaintiff discovered that Selvaletchumi had been making
payments to the defendant starting from 28 November 2013 to
26 December 2014 totalling RM9,000;
(j) Between 18 November 2013 and 24 September 2014, the defendant had
been communicating separately with both the plaintiff and
E
Selvaletchumi with different proposals for the repayment of the
shortfall;
(k) On 2 June 2014, the defendant obtained a receiving order and an
adjudication order (ROAO) against the plaintiff;
F (l) The plaintiff applied to the High Court to annul the ROAO and on
2 June 2014 the ROAO was annulled by the Alor Setar High Court. The
defendant did not appeal against the annulment order;
(m) On 3 March 2016, the plaintiff filed the present action against the
defendant for damages for (i) the tort of civil malicious prosecution – for
G
maliciously bringing bankruptcy proceedings against the plaintiff,
(ii) negligence, and (iii) abuse of process of court.
Findings Of The High Court
[3] In essence, the key grounds of the learned judge are as follows:
H
(i) The plaintiff cannot sue for civil malicious prosecution because there
must be a criminal prosecution first (Rawther v. Abdul Kareem [1966]
1 LNS 154; [1966] 2 MLJ 201 (FC); Jaafar Mohd Khalid v. Hong Leong
Bank Bhd [2013] 8 CLJ 869; [2013] 5 MLJ 800 (CA); RHB Bank Bhd
v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665; [2010] 2 MLJ 188
I
(FC));
610 Current Law Journal [2019] 1 CLJ

(ii) The plaintiff cannot sue for the tort of abuse of process because there is A
no mala fide on the part of the defendant (Moscow Narodny Bank Ltd v.
Ngan Ching Wen [2004] 2 CLJ 241; [2005] 3 MLJ 693 (FC)); and
(iii) The plaintiff cannot sue for the tort of negligence because parties to a
proceeding and their solicitors and counsel do not generally owe any
B
duty of care to the other side (Customs and Excise Commissioners v. Barclays
Bank Plc [2006] 4 All ER 256 HL; Mohamed Yusop Abdul Wahab v.
American Express (M) Sdn Bhd [2002] 7 CLJ 81; [2002] 6 MLJ 507).
Submission Of Parties
[4] On the first point concerning civil malicious prosecution, learned C
counsel for the plaintiff argued that the learned judge’s reliance on Rawther
(supra) is misplaced as the facts in that case are materially different. That case,
the plaintiff had successfully sued for malicious prosecution after the plaintiff
was acquitted of a charge of making a false affidavit. The Federal Court
reversed the decision of the lower court on the ground that the plaintiff had D
failed to prove that it was the defendant who set the criminal law in motion
against the plaintiff. Similarly, Jaafar (supra) is also distinguishable on the
facts. Learned counsel relied on Tetuan Bee Ling & Co lwn. Vijendran Ponniah
[2010] 6 CLJ 643 (CA) to argue that the plaintiff’s claim for civil malicious
prosecution is sustainable and an actionable tort. The learned judge also
E
failed to consider the plaintiff’s averments in his affidavit and statement of
claim of the acts of malice by the defendant. Tetuan Bee Ling & Co (supra)
supports the proposition that civil malicious prosecution is a recognised
cause of action. Malicious prosecution is an actionable tort and includes the
prosecution of civil proceedings (Willers v. Joyce & Anor [2016] UKSC 43).
F
[5] On the second and third point concerning abuse of court process and
negligence, learned counsel for the plaintiff argued that the learned judge did
not provide any reasons for arriving at his finding that there was no mala fide.
The fact that the defendant did not appeal against the annulment order is
tantamount to the defendant’s admission that the bankruptcy proceedings
G
against the plaintiff was an abuse of process and that the defendant did not
have the right to commence the bankruptcy proceedings in the first place.
Therefore, learned counsel argued that this is not a plain and obvious case
to be dismissed summarily and the plaintiff should be given an opportunity
to prove at trial that the defendant did not have a reasonable and probable
cause to the ROAO against the plaintiff (Bandar Builder Sdn Bhd & Ors v. H
United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 (SC)).
[6] In reply, learned counsel for the defendant argued that there is no such
tort as ‘civil malicious prosecution’. Since the plaintiff pleaded the tort of
malicious prosecution and not the tort of civil malicious prosecution,
I
Rawther’s case applies and the plaintiff is required to satisfy the five elements
viz, (i) the defendant has set a criminal law in motion against the plaintiff;
(ii) the criminal proceedings against the plaintiff terminated in the plaintiff’s
 Vivaganth Santharasilan v.
[2019] 1 CLJ Public Bank Bhd 611

A favour; (iii) the defendant had no reasonable and probable cause for setting
the law in motion against the plaintiff; (iv) the criminal proceedings was
actuated with malice in that the defendant had a motive other than to only
carry the law into effect; and (v) the plaintiff must prove damages. The facts
in Jaafar’s case are the same with the instant case. There was no criminal
B charge set in motion against the plaintiff.
[7] Learned counsel for the defendant also argued that the plaintiff’s
reliance on Tetuan Bee Ling’s case is misconceived as the Court of Appeal
in Jaafar’s case had pronounced that the causes of action preferred by the
plaintiff in Tetuan Bee Ling’s case did not include the tort of malicious
C prosecution but the tort of malicious civil proceedings or malicious
proceedings in bankruptcy. Further, since the bankruptcy proceedings
commenced against the plaintiff in this case was based on a valid judgment
and this fact is admitted by both parties, this itself makes it conclusive that
the defendant had a reasonable and probable cause to lodge bankruptcy
D proceedings.
[8] Learned counsel also argued that Willers v. Joyce (supra) does not apply
as it conflicts with the Federal Court decision in Rawther’s case (s. 3 of the
Civil Law Act 1956).
Striking Out Process Under O. 18 r. 19 Of The ROC 2012
E
[9] Under O. 18 r. 19 of the ROC 2012, the court has the power to strike
out the whole or part of any pleading which discloses no reasonable cause
of action, or which is scandalous, frivolous or vexatious, or which may
prejudice, embarrass or delay the fair trial of the action, or which is
F otherwise an abuse of the process of the court. The process of striking out
pleadings under this rule is summary in nature.
[10] The following principles upon which the court acts in exercising its
summary powers of striking out pleadings are well settled and established in
the oft-cited decision of the then Supreme Court in Bandar Builder Sdn Bhd
G (supra):
(i) The court’s power of striking out pleadings is exercisable only in plain
and obvious cases and where no reasonable amendment would cure the
defect;

H (ii) The court in exercising its powers should not conduct a minute
examination of the documents and facts of the case in order to ascertain
whether the party has a cause of action;
(iii) If the point requires substantial argument and careful consideration, it
may be more appropriate to set it down for trial under O. 33 r. 2 of the
I ROC 2012;
612 Current Law Journal [2019] 1 CLJ

(iv) the court must be satisfied that there is no reasonable cause of action or A
that the claims are frivolous or vexatious in the sense that it is plainly
evident that the statement of claim as it stands is insufficient, even if
proved, to entitle the plaintiff to what he asks; and
(v) So long as the pleadings disclose some cause of action or raise some
B
question fit to be decided by the judge, the mere fact that the case is weak
and not likely to succeed at the trial is no ground for the pleadings to
be struck out.
Decision
[11] The defendant’s principal argument is that the tort of civil malicious C
prosecution is non-existent; learned counsel cited numerous authorities in
support of his proposition. If the defendant’s contention is correct, then this
is a plain and obvious case that the pleadings disclose no reasonable cause
of action, then the statement of claim must be struck out. Is the defendant’s
argument borne out? In order to answer this question, it is necessary to set D
out below a brief treatise on the tort of malicious prosecution in the context
of this appeal.
Tort Of Malicious Prosecution
[12] The tort of malicious prosecution is a common law wrong. It strikes
E
at the balance between two countervailing interests of social importance:
safeguarding the individual from being harassed by unjustified litigation and
encouraging citizens to aid in law enforcement. On the one hand, it is the
right of every person to put the law in motion if he does it with the honest
intention of protecting his own or the public interest. Conversely, if legal
proceedings are initiated against an individual for a collateral purpose or F
without any proper basis or foundation for believing that they will ultimately
succeed, that individual may suffer great injury during the course of the
proceedings. That individual who is aggrieved by legal proceedings
improperly instituted against him may sue for damages for the tort of
malicious prosecution. G

[13] Under English law, the tort of malicious prosecution is limited to

malicious institution of criminal prosecutions and is not generally available
in civil proceedings. It has, however, been extended to civil claims which
constitute special cases of legal process such as the malicious prosecution of
a petition in bankruptcy or the malicious presentation of a winding-up H
petition (as observed by Lord Steyn in Gregory v. Portsmouth City Council
[2000] 1 All ER 560 HL; see also KHK Advertising Sdn Bhd v. Siera
Management Sdn Bhd (In Liquidation) [2018] 8 CLJ 423; [2018] 3 AMR 285
(CA) at para. [52]). Indeed, it has also been opined in Bullen & Leake & Jacob’s
Precedents of Pleadings, 14th edn vol. 1 at para. 2-06 that an action may lie for I
 Vivaganth Santharasilan v.
[2019] 1 CLJ Public Bank Bhd 613

A the abuse of ordinary civil process in respect of a tort of maliciously

instituting civil proceedings. In most respects, the matters which must be
proved and pleaded are fundamentally the same except that the proceedings
do not need to have been determined in the claimant’s favour.
[14] Applying the established principles, we are of the considered view that
B
this is not a plain and obvious case for the court to exercise its power of
striking out the statement of claim. In this case, the plaintiff’s cause of action
is predicated on the tort of maliciously instituting civil proceedings. In
particular, it is pleaded in para. 23 of the statement of claim that the
defendant had maliciously instituted bankruptcy proceedings against the
C plaintiff. The circumstances leading to the making of an ROAO against the
plaintiff and the annulment of the ROAO are contained in paras. 3 to 22 of
the statement of claim. We do not think that the statement of claim as it
stands is insufficient, even if proved, to entitle the plaintiff to his claim.
Whilst the cause of action may not have been appropriately framed in the
D statement of claim, we are not satisfied that no reasonable amendment would
cure the defect.
[15] In his written judgment, the learned judge opined that the plaintiff
cannot sue for the tort of abuse of process as there is no evidence to prove
mala fide on the part of the defendant in taking out the bankruptcy
E proceedings against the plaintiff. With respect, we do not think that the
learned judge ought to have conducted a minute examination of the
documents and facts of the case in arriving at his finding. The established
principles are quite clear that in a summary process under O. 18 r. 19, the
court should not conduct a minute examination of the documents and facts
F in order to ascertain whether the plaintiff has a cause of action.
[16] At any rate, we are in agreement with the views expressed in preceding
para. [12] and the undisputed facts of the instant appeal fall within the special
cases of legal process such as the malicious prosecution of a petition in
bankruptcy. As such, we are of the considered view that on the facts, the
G summary process of striking out the pleadings is not suitable and the matter
should proceed to full trial to be decided on viva voce and documentary
evidence.
[17] In consequence thereof, we allowed the appeal with costs in the cause
and remitted the matter to the High Court for full trial.
H