Appeals can still lie against dismissal of Striking Out Applications

On 09.09.2025, the Federal Court in MT Ventures v QM Print, handed down an important decision on the right to appeal the dismissal of striking out applications.

S.68(1)(f), Courts of Judicature Act 1965 (“CJA”) provides that “no appeal shall be brought to the Court of Appeal...where a High Court dismissed any application to strike out any writ or pleading”. Nallini FCJ held that when read together with s.67 and 3, CJA, this bar to further appeal would only be applicable to cases where further oral evidence needs to be adduced in order that it can arrive at a decision which finally disposes of the parties’ rights.

However, where the striking out is targeted at a specific point of law which can determine the entire cause or action finally, there exist a right of appeal despite the wording of s.68(1)(f), CJA. This means that where the striking out is premised on issues such as jurisdiction or locus standi, parties can appeal further to the Court of Appeal even if dismissed at first instance.

There is a lot to unpack in this lengthy grounds of judgment but the key takeaways are as follows:

·              where a decision finally disposes a party’s rights, a right to appeal accrues in accordance with s.67 and 3, CJA and is not taken away by s.68(1)(f), CJA;

·              the requirement of finality to parties’ rights does not preclude appeals on all applications; a final disposition of parties’ rights may include a “decision” made in an interlocutory application. A test of whether there has been a final disposal of the parties’ rights is the question of “prejudice”;

·              there are rights that are separate from the substantive rights under the suit but are also crucial to the parties. Applications that implicate these free-standing rights are appealable as of right. An example would be the denial of an application for discovery or interim protection of property;

·              The modern approach to statutory interpretation requires that the purpose of the statute be engaged immediately; ambiguity is not a pre-condition to the consideration of purpose;

·              even prior to the introduction of s.68(1)(f), CJA, there was no free-standing right to appeal a decision on the dismissal of a striking out. This is because there is generally no final disposal of the parties’ substantive rights where a striking out application is dismissed so that oral evidence can be adduced at trial. There are however exceptions when the challenge is in respect of threshold issues;

·              The substantive right to appeal against striking out applications is vested at the time the suit is filed and cannot be taken away by an amending act unless expressly stated to be retrospective.

Our Alvin Tang acted as amicus curiae for the Malaysian Bar together with Steven Thiru, Advocates & Solicitors, Kelly Khoo, Gregory Das, Jeremiah Rais, Nur Dalila Zulkarnain

See grounds of judgment here:

https://tinyurl.com/2ust7zb8