Geran 41063, Lot 46915, Bandar Selayang, Daerah Gombak, Negeri Selangor with an area of 24,959 square feet (“Lot 2”). [14] The 2 lots were part of a piece of land which the Vendor intended to subdivide from a master title, known as Geran No. 41063, Lot 46915, Bandar Selayang, Daerah Gombak, Negeri Selangor. [See Enclosure 3 Record of Appeal Volume 2A pages 105 and 128 Recital C to E]. S/N 9FlLUvqzlke0A1TJ1g6bDg [15] At the material time, the layout plan for subdivision of the lots was still at the planning stage and was pending approval by the relevant authority. [See Enclosure 3 Record of Appeal Volume 2A pages 105 and 128 Recital C to E]. [16] The plaintiff agreed to buy Lot 1 and Lot 2 and had entered into the SPA Agreements with the Vendor, subject to the approval of the relevant authority for subdivision. The two SPA Agreements can be seen in Record of Appeal Volume 2A pages 104 and 127 respectively. [17] The 2nd defendant prepared a Letter of Undertaking dated 30-06-2020 which stipulates that the plaintiff shall pay RM 592,400.00 to the 1st defendant as agency fees upon signing the sale and purchase agreements, whereby the said amount shall be deducted from the earnest deposit payable to the Vendor. [“Letter of Undertaking”] [Record of Appeal Volume 2A page 182]. [18] The Letter of Undertaking was signed by the plaintiff and RM 318,000.00 was paid to the 1st defendant as part-payment of the agency fees. [19] However, before the balance of RM 274,400.00 was paid to the defendants, the plaintiff was informed by the Vendor that the relevant authority had rejected the Vendor’s application to subdivide the master title. [See Affidavit of Lam Choon Yen dated 16-03-2022 at paragraph 14 in Record of Appeal Volume 1 page 46. See also Ground of Judgment Sessions Court at paragraph 12]. S/N 9FlLUvqzlke0A1TJ1g6bDg [20] As a result of that, the Vendor and the plaintiff then executed a Deed of Revocation for the SPA Agreements. The Vendor returned all the monies previously paid by the plaintiff. [Record of Appeal Volume 2A page 164]. [21] The plaintiff then demanded from the defendants a refund of the sum of RM 318,000.00 previously paid to the 1st defendant. The defendants had refused and/or failed and/or neglected to do so. Legal proceedings at the Sessions Court [22] The plaintiff filed a civil suit in the Sessions Court to recover part-payment of the estate agency fees RM 318,000.00 from the defendants. The defendants counterclaimed for the balance estate agency fees of RM 274,400.00 yet to be paid by the plaintiff. Plaintiff filed a summary judgment application [23] After the close of pleadings, the plaintiff filed a summary judgment application for the RM 318,000.00 to be returned. The defendant also filed summary judgment application for the balance agency fee of RM 274,400.00 be paid by the plaintiff. [24] In resisting the plaintiff’s summary judgment application, the defendants asserted that the SPA Agreements were unconditional and the plaintiff’s obligation to pay agency fee subsists despite the abortion of the SPA Agreements. S/N 9FlLUvqzlke0A1TJ1g6bDg [25] After considering both parties’ Affidavits and Submissions, the learned Sessions Court Judge rejected the defendants’ contention and held that the SPA Agreements were conditional upon the approval of the relevant authority to subdivide the master title. Thus, the defendants are not entitled to the agency fees. [See Enclosure 6 Additional Record of Appeal Ground of Judgment Sessions Court at paragraphs 36 and 37]. [26] The Sessions Court allowed the plaintiff’s application for summary judgment and ordered the defendants to return RM 318,000.00 to the plaintiff. An appeal was filed to the High Court. [During the hearing of this appeal before me on 23-06-2023 counsel had informed me that the appeal had since been dismissed by the High Court Judge]. [27] Meanwhile, the defendants’ summary judgment application was dismissed by the Sessions Court and no appeal was filed pertaining to the said decision. Application to strike out the defendants’ counterclaim [28] In light of the summary judgment entered for the plaintiff’s claim, the plaintiff then filed an application to strike out the defendants’ counterclaim under Order 18 rule 19(1) of the Rules of Court 2012. [29] The learned Sessions Court Judge held that the defendants’ counterclaim was no longer maintainable after the summary judgment was allowed for the plaintiff’s claim. The learned Sessions Court judge held that the issues raised by the defendants were now res judicata based on the decisions in Lonpac Insurance Bhd v Koridor Padu S/N 9FlLUvqzlke0A1TJ1g6bDg Sdn Bhd & Ors [2021] MLJU 1084 and Gan Seng Biang v Priyamas Export Corporation Sdn Bhd [2010] MLJU 1319 [See Enclosure 6 Additional Record of Appeal Ground of Judgment Sessions Court at paragraph 38 - 42]. [30] The defendants filed an appeal to me against the striking out decision of the Sessions Court. Appeal before me [31] The defendants alleged their Counterclaim should not be struck out because – i. There is a disputed fact as to whether the earnest deposit was held by the defendants or the vendor’s lawyer. ii. There is a disputed fact as to whether the defendants are agents of the plaintiff or the vendor. iii. The plaintiff did not dispute the binding effect of the Letter of Undertaking. iv. The SPA Agreements were not conditional agreements. The Law on Striking Out Under Order 18 Rule 19 ROC 2012 [32] In 2019 the Federal court in Tony Pua Kiam Wee v Government of Malaysia & Another Appeal [2019] 6 MLRA 432; [2019] 12 MLJ 1; [2020] 1 CLJ 337; [2019] 8 AMR 325 gave the following guidance on S/N 9FlLUvqzlke0A1TJ1g6bDg the test in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969. Nallini Pathmanathan FCJ (delivering judgment of the court) said : [38] … The essence of a striking out application particularly under limb (a) of O 18 r 19 is that upon an examination of the claim as pleaded in the statement of claim, a whole and coherent cause of action must subsist. A whole and coherent cause of action cannot subsist until and unless all the essential ingredients comprising that cause of action subsist or are made out in the body of the statement of claim. That in turn means that it is incumbent upon a court undertaking a striking out exercise to scrutinise a claim purposively such that it is satisfied that prima facie, the statement of claim contains a sufficient factual matrix to support each and every ingredient of the cause of action pleaded ... [39] It may well be the case that a claim is pleaded in such a manner that the factual matrix is scandalous or so frivolous or vexatious that it can give rise to no other inference than that it is wholly indefensible or unsustainable. This would be plainly discernible on the face of a claim. Such pleas or averments would fall for striking out under one of the other limbs of O 18 r 19 and/or the inherent jurisdiction of the court. [Emphasis Added] Application of law to facts S/N 9FlLUvqzlke0A1TJ1g6bDg [33] In my view, grounds [i] to [iii] raised by the defendants are not valid grounds to resist the striking out. This is because the facts as well as the Letter of Undertaking show clearly that the defendants were estate agents and RM 318,000.00 was paid by the plaintiff to the 1st defendant as agency fees based on the Letter of Undertaking. Further the defendants had filed their Counterclaim on the basis they were estate agents. Res judicata [34] The issue that this court needs to decide is whether the SPA Agreements are conditional agreements or not. On this issue, the Sessions Court had held in the earlier summary judgment application of the plaintiff that the defendants are not entitled to the agency fee as the SPA Agreements are conditional agreements and allowed summary judgment for the plaintiff’s claim. The defendants were ordered to return the earlier payment of RM 318,000.00 to the plaintiff. The appeal by the defendant to the High Court judge was also dismissed. [35] The plaintiff therefore contends the appeal should be dismissed as the issues raised by the defendants in its Counterclaim are now res judicata. [36] In my view, the courts have consistently held that when the issues raised by a defendant in his counterclaim had been earlier ventilated by the parties at the hearing of the Summary Judgment Application in favour of a plaintiff the same issues are considered res judicata and the counterclaim will be struck out. S/N 9FlLUvqzlke0A1TJ1g6bDg [See Small Medium Enterprise Development Bank Malaysia Berhad v Primanora Medical Centre Sdn Bhd & Ors [2019] 5 MLRH 226 and [2019] MLJU 1371, Nakano (M’Sia) Sdn Bhd v Oriental Wealth (M) Sdn Bhd [2002] MLJU 379, Lonpac Insurance Bhd v Koridor Padu Sdn Bhd & Ors [2021] MLJU 1084 and Gan Seng Biang v Priyamas Export Corporation Sdn Bhd [2010] MLJU 1319]. [37] In Small Medium Enterprise Development Bank Malaysia Berhad v Primanora Medical Centre Sdn Bhd & Ors [2019] 5 MLRH 226 and [2019] MLJU 1371, the High Court held that the issue raised in the counterclaim had been ventilated in the summary judgment application and struck out the counterclaim - [36] Thus the issues raised by the Defendants in their Counterclaim had been ventilated by the parties at the hearing of the Summary Judgment Application. In deciding the Summary Judgment Application this court has considered the various alleged triable issues put forward by the Defendants and this includes the issues in relation to the Defendants’ Counterclaim for purpose of determining whether any of the said issues are indeed triable or ought to be investigated. The findings of this court in respect of the issues relating to the Defendants’ Counterclaim is as stated in paragraph 35 above. To put it summarily, such issues are not bona fide triable issues and the Defendants failed to show such issues and the other issues raised are meritorious and ought to be tried. S/N 9FlLUvqzlke0A1TJ1g6bDg [37] In the Striking Out Application, the defendants raised again the same issues relating to their counterclaim and submit that they have a reasonable cause of action against the plaintiff. In this respect, I am not able to agree with the defendants' contentions that the issues relating to their counterclaim are totally different from the claim made by the plaintiff and the res judicata is not applicable. The relief sought in the counterclaim may be different from the relief sought by the plaintiff but the counterclaim is premised on the same issues which in turn are premised on the same facts and evidence adduced before this court at the hearing of the Summary Judgment Application. As the same issues had been ventilated and adjudged, res judicata applies and the defendants cannot re-open and re-argue the same issues which had been determined previously to prevent duplicity of proceedings and abuse the process of the court. Moreover, this court is of the considered opinion that the facts as pleaded in the defendants' pleadings shows there is no reasonable cause of action against the plaintiff. (Emphasis added) [38] Likewise, in Nakano (M’Sia) Sdn Bhd v Oriental Wealth (M) Sdn Bhd [2002] MLJU 379, the High Court also held that the issue raised in the counterclaim was the very same issue ventilated and adjudged in the summary judgment application and held the counterclaim was no longer triable. Zakaria Sam J said :- The defendant’s counterclaim in respect of alleged defects, shrinkage or other faults which falls under clause 19 of the General Condition of Contract/Agreement had already been raised and dealt S/N 9FlLUvqzlke0A1TJ1g6bDg with in the summary judgment application before Kamil Awang J. Each and every items of the defendant’s counterclaim for the alleged default had been considered from paragraphs 27 to 39 in his grounds of judgment. The learned Judge had carefully scrutinized all the affidavits filed under the O. 14 Application and all the relevant documents and correspondences that had bearing on the defendant’s counterclaim and came to the conclusion that the defendant’s counterclaim was frivolous, untenable or lacking in good faith. I agree with the submission of the learned counsel for the plaintiff that by any stretch of imagination, the same counterclaim could not now become triable at this stage. The plaintiff’s application to strike out is merely to put an end to the defendant’s frivolous counterclaim. It is pertinent to note that the said judgment had been affirmed by the Court of Appeal. [Emphasis added] [39] The High Court in Lonpac Insurance Bhd v Koridor Padu Sdn Bhd & Ors [2021] MLJU 1084 on the same legal issue also held as follows. Anand Ponnudurai JC said :- [18] The Defendants then contend that I am not bound by my earlier decision on the Summary Judgment application and that I could look at Enclosure 38 afresh. In my view, such a contention may be arguable IF the facts and basis of a counterclaim are not intrinsically entwined with the defence. This is clearly not the case here. As can be seen from the above narration of facts, even the Defendants admit that the counterclaim is entwined with their defence S/N 9FlLUvqzlke0A1TJ1g6bDg with the outcome of the Summary Judgment having a bearing on the counterclaim. [19] With due respect, having found that the defences raised by the Defendants are not at all triable issues, it would be a mockery for me to now dismiss Enclosure 38 as that would have the effect of taking a totally contradictory position in holding that those very same defences are now triable issues/or basis to have a sustainable cause of action so as to defeat a striking out application. [20] This current situation appears to not be an uncommon one. In several decided cases, the same issue arose in relation to the plaintiff applying to strike out the Defendants’ counterclaim after Summary Judgment was entered. In those cases, the issues raised in the defence and counterclaim had been argued and adjudged during the Summary Judgment application. In all the following cases, the Defendants’ counterclaim was struck out. (Emphasis added) [40] The High Court in Gan Seng Biang v Priyamas Export Corporation Sdn Bhd [2010] MLJU 1319 also held that to relitigate the same issue which had been previously determined is a violation to the principle of res judicata. Lee Swee Seng JC held as follows :- Plaintiff’s counsel submitted that all the issues contained in the Defendants’ Defence and Counterclaim were raised by the Defendants’ in the affidavits filed to oppose the Plaintiff’s application S/N 9FlLUvqzlke0A1TJ1g6bDg for summary judgment. … Therefore, the Plaintiff’s counsel submitted that the Judge in allowing the re’s summary judgment had after taking into consideration all those issues that are now raised to oppose this striking-out application, dismissed them. In light of the decision of the Court in the summary judgment application, it is evident that the Defendant does not have a sustainable Counterclaim. The Plaintiff further submitted that the Defendants should not be allowed to re-litigate the issues already disposed of by the Court… I find merits in the Plaintiff’s argument that to hold that the Defendants have a sustainable cause of action vide their Counterclaim would allow them to re-litigate an issue that had been previously determined, thereby contravening the principle of “res judicata”. (Emphasis added) [41] In M.RM. SP. V. Subrahmanyan Chettiar @ V. Subrahmanyan S/O M.RM. SP. V. Venkatachalam Chettiar (Pasport India No. H8720966) and anor v Swaminathan Swetharanyam @ SM. Swetharanyam A/L Swaminathan Chettiar @ M.RM. SP. SM. Swetharanyam and anor [2022] 1 LNS 2396 Azizan Md Arshad JC held - [16] In the case of ASIA COMMERCIAL FINANCE v. KAWAL TELITI,the Supreme Court explained res judicata simply means “a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more S/N 9FlLUvqzlke0A1TJ1g6bDg the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth. [Emphasis added] [42] I agree with the authorities above. Since the summary judgment granted by the Sessions Court had now been affirmed by the High Court, I am of the view the Sessions Court was correct in striking out the Counterclaim on the ground of res judicata. The SPA Agreements were conditional agreements [43] Besides the issue of res judicata, I am also of the view the SPA Agreements are conditional agreements. This issue can be decided by a perusal of the terms of the SPA Agreements. [44] It is clear from Recital C read with clause 7.1 and the Second schedule at paragraphs 3[a] and 4 that the SPA Agreements are conditional agreements. [45] As the conditions under the SPA Agreements for completion were not met the SPA Agreements did not become unconditional and thus under paragraph 4.2.4 of the Malaysian Estate Agency Standards 2020 the estate agency fees were not due to the defendants. [46] Thus, the Counterclaim by the defendants for the balance of its estate agency fees are not sustainable and the Sessions court was correct in striking out the Counterclaim. S/N 9FlLUvqzlke0A1TJ1g6bDg