Lim Ban Kay @ Lim Chiam Boon v Kilang Kelapa Sawit Morib Sdn Bhd &
Ors [2022] MLJU 2572
Malayan Law Journal Unreported
HIGH COURT (SHAH ALAM)
JAMHIRAH ALI JC
GUAMAN SIVIL NO MT4(2)-22-2109-07
12 October 2022
April Tay (with Pey Chau Xuan) (Rama Velu & Assoc) for the plaintiff.
Chan Kok Keong (Chan & Assoc) for the first defendant.
Reny Rao (AJ Ariffin, Yeo & Harpal) for the second and third defendants.
Jamhirah Ali JC:
GROUNDS OF JUDGEMENTINTRODUCTION
[1]This is an application by the Applicant (Lim Yan Peng) for an order that the Applicant is made a party in this suit to substitute the Respondent/Plaintiff (deceased) pursuant to Order 15 rule 7 (1) and (2) to of the Rules of Court 2012 (ROC 2012).
[2]The 1st Defendant objected to the said application. The 2nd Defendant had not filed an Affidavit in Reply to object, however, the learned counsel for the 2nd Defendant had informed this Court that the 2nd Defendant is supporting the 1 st Defendant’s objection.
BRIEF FACTS
[3]The Applicant is the executor of the Deceased Lim Ban Kay @ Lim Chiam Boon’s (the Plaintiff) estate pursuant to a grant of Probate dated 27.08.2019.
[4]The Plaintiff had obtained an order for the specific performance of four (4) agreements against the Defendants at the Court of Appeal on 27.08.2015 (the COA Order). On 25.01.2017, the Plaintiff filed an application to specifically perform the four (4) agreements in the High Court at Kuala Lumpur vide Originating Summons No. WA- 24NCVC149-01/2017 for either money to be paid or to transfer a portion of the targeted lots. However, the Plaintiff passed away in the middle of the suit. The High Court at Kuala Lumpur allowed the Applicant to be substituted as a party to the suit. Nonetheless, the suit was dismissed with liberty to file afresh as the Defendants’ solicitors had argued that the proper forum to decide the matter should be the High Court at Shah Alam.
[5]The executrix of the deceased estate then filed an Originating Summons against the Defendants in the High Court at Shah Alam vide BA-24NCVC-547-06/2020 to specifically enforce the COA Order. However, the learned Judge had struck out the said application with liberty to file the said application at the original suit in the High Court at Shah Alam suit no. MT4(2)-22-2109-07.
[6]Therefore, the Plaintiff has filed a Notice of Application to enforce the said COA Order against the Defendants vide Shah Alam High Court Civil Suit No: MT4(2)-22-2109-07 (the Application) to seek an order of specific performance on the said agreements to work out or give effect to the said COA Order. The Application was filed with the Affidavit in Support affirmed by the Applicant. However, the 1st Defendant raised a preliminary objection on
the locus standi of the Applicant to affirm the Affidavit in Support filed therein with the said Application.
[7]Hence, this application was filed by the Applicant for an order to substitute the deceased Plaintiff.
THE LAW
[8]Order 15 rule 7(2) of the ROC 2012 states as follows: –
