1. ) Instant Achievement Sdn Bhd v Rhb Bank Berhad (JA-22NCvC-39-04/2024)

Before this Court is a Notice of Application (Enclosure 18) dated 27.05.2024 filed by the Defendant to strike out the Plaintiffs Writ 13/11/2025 11:48:15 JA-22NCvC-39-04/2024 Kand. 58 and Statement of Claim dated 05.04.2024 under order 18 Rule 19

(b) and/or (d) of the Rules of Court (ROC) 2012 and/ or the inherent jurisdiction of this court.

For ease of reference, the Defendant will hereinafter be referred to required context.

At the conclusion of the hearing of the application, this Court allowed Statement of Claim Writ action.

P has since filed an appeal to the Court of Appeal against this

judgment. Background and facts of the case

At the request of P1, D had granted three (3) term loans to P1 for a total sum of RM41,429,000.00. The breakdown of the said term loans are as follows: -

1st term loan RM18,921,000.00

(ii) 2nd term loan RM10,448,000.00

(iii) 3rd term loan RM12,060,000.00

The purpose of the term loans were for P1 to develop a residential project on two pieces of land known as Geran 95642, Lot 1958, Mukim Pulai, Daerah Johor Bahru, Negeri Johor and Geran 95543, Lot 2510, Mukim Pulai, Daerah Johor Bahru, Negeri Johor.

The documents for the said term loan consist of

to P1 dated 21.11.2016;

(ii) upplemental letters of offer dated 01.12.2016/

12.02.2019/ 01.04.2019;

(iii) letters dated 09.08.2019, 18.09.2019, 20.09.2019; and

(iv) Facilities Agreement between P1 and D dated 19.12.2016.

The term loans above were secured by the following documents in favour of P: -

a personal guarantee dated 11.04.2019 executed by P2 and ;

(ii) a legal charge registered on 25.01.2017 (Presentation No. 5245/2017) over the aforesaid two pieces of land held under Geran 95642, Lot 1958, Mukim Pulai, Daerah Johor Bahru, Negeri Johor and Geran 95543, Lot 2510, Mukim Pulai,

P1 subsequently defaulted in the repayment of all the three (3) term loans.

Despite repeated demands, P1 had failed to remedy the breach resulting D through its solicitors filed an application for an order for sale of the charged lands vide Johor Bahru High Court Originating Summons No JA-24FC-1045-12/2021 ( OS 1045 ).

P1 applied for a stay of the foreclosure proceedings in OS 1045 but was dismissed by the High Court on 07.09.2022. On the same day, the High Court allowed the Order for Sale for the charged properties.

P1 appealed against both decisions of the High Court to the Court of Appeal on 06.10.2022.

the dismissal of the stay of the foreclosure proceedings with costs of RM5,000.00 to be paid to D.

O Order for Sale in OS 1045 with costs of RM10,000.00 to be paid to D.

Since there was no stay against the Order For Sale in OS 1045, the Deputy Registrar of the High Court had earlier on 16.07.2023 fixed the date of auction of the charged lands.

On 11.09.2023, P1 filed an application for stay of the auction and to cross-examine appointed by parties.

stay and cross-examination application were dismissed on 27.11.2023 while their appeal against the auction directions by the Deputy Registrar was dismissed by the High Court on 16.01.2024.

In the meantime, the auction of the charged lands, which was conducted online on 25.09.2023, was successful. The charged lands were sold at the reserve price to Eoi Sdn Bhd .

However, the successful bidder was not able to be registered as the registered proprietor of the charged lands due to a private caveat entered by P3 on 17.01.2024.

Apart from the charge action, it is to be noted that D had also commenced debt recovery proceedings against P1, P2 and P3 vide Johor Bahru High Court Civil Suit JA-22NCC-71-08/2021 ( where Summary Judgment was obtained 16.12.2021.

The appeal against the Summary Judgement was dismissed by the Court of Appeal on 13.02.2023.

On 25.10.2023, to appeal against the said

P1, P2 and P3 had also filed a counterclaim against D in Suit 71 which was struck out by the High Court on 13.09.2022 and this decision was upheld by the Court of Appeal on 04.01.2024.

The long and short of the facts are that OS 1045 and Suit 17 were

On 05.04.2024, P1, P2 and P3 filed the present Writ action where they seek to have the summary judgment in Suit 71 and its subsequent appeals and the Order for Sale in OS 1045 and its subsequent appeals to be set aside on the basis of fraud and/or Million, general damages and exemplary damages among others.

have

(1)(b) and/ or (d) ROC 2012 and/ or inherent jurisdiction of the Court. Legal Position

Order 18 Rule 19(1) ROC 2012 states as follows: -

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

The Applicable test in order to determine whether this Court ought to invoke its jurisdiction under Order 18 Rule 19 ROC 2012 would be the test propounded in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 by the Supreme Court, as follows: - The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in pari materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable .

In light of case, the powers granted to the Court in striking out applications is summary in nature.

That being so, it can only be invoked in respect of a claim that is obviously unsustainable. Reference is made to Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673 where it was held by the Federal Court that:- ... We also make this observation on the application of the court's summary power to strike out a pleading under O. 18 r. 19 of the Rules of Court 2012 (successor to RHC 1980). Although the power to strike out is a wide discretion, it should be exercised with care and only when the threshold requirement of 'an obvious and unsustainable case', can a pleading be struck out.

Further reference may also be made to Tan Wai Hong & ORs v Malaysian Airlines System Berhad & Ors [2017] 4 MLJ 540 where the Court of Appeal had this to say:- [7] The Court will adopt the following as principles applicable to the consideration of an application to strike out pleadings and endorsements: a) lication under Order 18 rule 19(1)(a), no affidavit evidence is admissible; b) All the averments in the statement of claim must be assumed to be true; c) The Court should only exercise its powers sparingly and only in clear cases; d) The test to be applied is whether on the face of pleadings, the claim is obviously unsustainable. The matter must be unarguable or almost incontestably bad; e) The burden is on the defendants to show to the Court unsustainable or in bound to fail at trial; f) Where there is a dispute as to the factual matrix of the case, the Court would not strike out the pleadings and endorsements; g) The power to strike out pleadings and endorsements should be exercised after the Court has considered all facts, but the Court must not embark a minute examination of the documents and the facts of the case as this is solely reserved for the trial judge; h) no reasonable cause of action on its face. The Oxford In pleading: Manifestly insufficient or futile. Black Law Dictionary, 9th ed. (Thomson Reuters, St. Paul, basis or legal merit; not serious; not reasonably no legal basis, often filed to harass or extort money from n the Oxford English Dictionary are the following: Vexatious 1. Causing, tending or disposed to cause, vexation. c spec Of legal actions: Instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant. ion, the action of troubling or harassing by aggression or interference (sometimes spec by lawsuit instituted maliciously and without good grounds, meant to create trouble and expense for the party being i) process) as (ii) wrong or improper use, misuse, misapplication, perversion; turning the wrong way, pleading is an abuse of process if the litigation process is used for improper purpose; e.g., where the proceedings constitute a sham; where the process of the Court is not being fairly or honestly used, or is employed for some ulterior or improper purpose; j) In exercising the power under Order 18 rule 19(1)(d), the Court is not limited to considering the pleadings of the parties, but is entitled to consider affidavit relating to the issues in the case; and k) Where the Court is to exercise its inherent jurisdiction to dismiss a claim, it is important that there is no dispute

Refer also to Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1 (Federal Court):- [26] The tests for striking out application under O. 18 r. 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia as follows: (a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; (b) this summary procedure can only be adopted when it can be clearly minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; and (d) If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 of the ROC; and (e) The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [27] The Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75; [2012] 1 MLJ 473, had adopted the well-settled principle of striking out in the following passage A striking out order should not be made summarily by the court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial, (see Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 2 MLJ 565 (Federal Court)). [28] The basic test for striking out as laid down by the Supreme Court in Bandar Builder (supra) is that the claim on the face of it of unsustainability must appear on the face of the claim without having to go into lengthy and mature consideration in detail. If one has to go into lengthy and mature consideration in detail of the issues of law and/or fact, then the matter is not appropriate to be struck out summarily. It must be determined at trial. Order 18 Rule 19 (1)(b) ROC 2012

On what constitutes scandalous, frivolous or vexatious within the meaning of Order 18 Rule 19 (1)(b) ROC 2012, refer to Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong & The Hong Jet [2006] 7 CLJ 541 (High Court): - I have on several occasions explained the ambit and purview of the words "scandalous, frivolous or vexatious" in O. 18 r. 19(1)(b). Scandalous means wholly unnecessary or irrelevant, while "frivolous and vexatious" mean obviously unsustainable: see Mohamed Nazri, supra; Boey Ai Leng v. Trans Resources Corporation Sdn Bhd [2002] 1 CLJ 405 and Datuk Ir Che Amran Mohd Yusoff v. Yayasan Melaka & Ors [2003] 1 CLJ 767. Order 18 Rule 19 (1) (d) ROC 2012

On what constitutes abuse of court process under Order 18 Rule 19

(1)(d) ROC 2012, reference can be made to Godrej Sara Lee Ltd v Siah Teong Teck & Anor [2007] 7 MLJ 153 where it was held by the High Court that: - [22] Singapore said: been given a wide interpretation by the courts. It includes considerations of public policy and the interests of justice. This term signifies that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery. It will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed and will depend on all relevant circumstances of the case. A type of conduct which has been judicially acknowledged as an abuse of process is the bringing bona fide for the purpose of obtaining relief but for some other ulterior or collateral purpose, it might be struck out as an abuse of the process of the court. Whether Res Judicata/ Estoppel applies

have been: -

Non-fulfillment of conditions precedent by D (paragraphs 72, 77, 81(d), and 88 Statement of Claim);

Fraud by third parties (paragraphs 73,74 and 84 Statement of

81, 82 and 83 Statement of Claim).

Be that as it may, a closer scrutiny will reveal that the above issues were also raised and dealt with in OS 1045 [refer to paragraphs 36, 10) concerning the non-fulfillment of conditions precedent]. As for fraud by third parties, similar issue appears to have been raised in paragraphs 42 and 52.10 of Enclosure 10 OS 1045. With regards to e same was also raised in paragraph 52.2, 52.3, 52.4, 52.5 and 52.6 of Enclosure 10 OS 1045.

At the same time, in Suit 71 particularly during summary judgment [refer to paragraphs 41, 42, 43, 44, 45 and 46 of 7) concerning the non-fulfillment of conditions precedent]. As for fraud by third parties, refer to same contentions at paragraphs 48 former employees, this was also raised in paragraph 50, 51, 73, 80,81 and 82 of Enclosure 7 Suit 71.

The above being the case, counsel that res judicata. As the issues have already res by being disposed of by the High Court in the aforementioned two (2) separate proceedings and upheld on appeals, P cannot now be allowed to litigate the same issues. In this regard, reference is made to Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 where the Federal Court had held that:- What is res judicata? It 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 the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation - interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way as estoppel by record. Since the two doctrines are the same, it is no longer of any practical importance to say that res judicata is a rule of procedure and that an estoppel per rem judicatumis that of evidence. Such dichotomy is apt to give rise to confusion. The starting point ought to be the celebrated passage by Wigram, V.C., in the case of Henderson v. Henderson [1843] 3 Hare 100 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time.

through the present suit on the application of the doctrine and principles of res judicata.

As a further illustration, refer to Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1 where the Federal Court held that: - The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v. Henderson 1843 3 Hare 100 (and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are:

a party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel);

(ii) if a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (ie, to recover further damages);

(iii) the doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the claimant's only right is the judgment itself;

(iv) a party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel);

a party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the 'Henderson v. Henderson ' principle);

(vi) there is a general procedural rule against abusive proceedings. It must also be shown that the earlier judgment necessarily and with precision determined the point in issues to constitute res judicata. (See Hoystead v. Taxation Commissioner [1926] AC 155; Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd & Ors [1966] 2 All ER 536 at p. 565; Tong Lee Hwa & Anor v. Lee Yoke San [1978] 1 LNS 218; [1979] 1 MLJ 24

Based on the Federal Court decision in Orchard Circle in respect of conditions precedent, fraud and misconduct in OS 1045 and Suit 71 cannot be allowed to be re-opened in the present action.

That issue e as a result of res judicata can be found from the high authority in Boustead Trading

Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283 where the Federal Court had held as follows: - The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying fact patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless. Edgar Joseph Jr J (as he then was) in an illuminating judgment in Alfred Templeton & Ors v. Low Yat Holdings Sdn Bhd & Anor [1989] 2 MLJ 202 at p 244 applied the doctrine in a broad and liberal fashion to prevent a defendant from relying upon the provisions of the Limitation Act 1952. The doctrine may be applied to enlarge or to reduce the rights or obligations of a party under a contract: Sarat Chunder Dey v. Gopal Chunder Laha LR 19 IA 203; Amalgamated Investment and Property Co Ltd (In liquidation) v. Texas Commerce International Bank Ltd [1982] 1 QB 84; [1981] 3 All ER 577; [1981] 3 WLR 565. It has operated to prevent a litigant from denying the validity of an otherwise invalid trust (see, Commissioner for Religious Affairs, Trengganu & Ors v. Tengku Mariam bte Tengku Sri Wa Raja & Anor [1970] CLJU 21; [1970] 1 MLJ 222) or the validity of an option in a lease declared by statute to be invalid for want of registration (see, Taylor Fashions Ltd v. Liverpool Victoria Friendly Society [1981] 1 All ER 897; [1981] 2 WLR 576). It has been applied to prevent a litigant from asserting that there was no valid and binding contract between him and his opponent (see, Waltons Stores (Interstate) Ltd v. Maher

164 CLR 387; [1995] 3 MLJ 331 at 345 Spiro v. Lintern [1973] 3 All ER 319; [1973] 1 WLR 1002). It may operate to bind parties as to the meaning or legal effect of a document or a clause in a contract which they have settled upon (see the Amalgamated case) or which one party to the contract has represented or encouraged the other to believe as the true legal effect or meaning: American Surety Co of New York v. Calgary Milling Co Ltd (1919) 48 DLR 295; De Tchihatchef v. Salerni Coupling Ltd [1932] 1 Ch 330 Taylor Fashions. We would add that it is wrong to apply the maxim estoppel may be used as a shield but not a sword' as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it... We take this opportunity to declare that the detriment element does not form part of the doctrine of estoppel. In other words, it is not an essential ingredient requiring proof before the doctrine may be invoked. All that need be shown is that in the particular circumstances of a case, it would be unjust to permit the representor or encourager to insist upon his strict legal rights. In the resolution of this issue, a judicial arbiter would, when making his assessment of where the justice of the case lies, be entitled to have regard to the conduct of the litigant raising the estoppel. This may, but need not in all cases, include the determination of the question as to whether the particular litigant had altered his position, although such alteration need not be to his detriment.

This Court would also wish to add iled an application for leave to appeal against the decision of the Court of the effect of undermining the decision of the appellate courts which until set aside is binding on this Court. Refer to Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 CLJ 577 (Federal Court) page 603:- Precedents not only have persuasive authority but also must be followed when similar circumstances arise. Any principle announced by a higher court must be followed in later cases. In short, the courts are bound within prescribed limits by prior decisions of superior courts. Judges are also obliged to obey the set-up precedents established by prior decisions. This legal principle is called stare decisis.

appeal in respect of the summary judgment entered against them in Suit 71, all matters concerning Suit 71 has run its course. Similarly, the Federal Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd [2018] 6 CLJ 271 (Federal Court): - [20] As said, against the order of Yew Jen Kie JC, the plaintiff appealed to the Court of Appeal. When its appeal (S-02-800-2006) was dismissed by the Court of Appeal, the plaintiff applied to the Federal Court for leave to appeal. But when the Federal Court refused leave to appeal, all litigation that pertained to the order of Yew Jen Kie JC had run its entire course (see Ooi Bee Tat v. Ooi Bee Tat & Sons Sdn Bhd & Anor [1998] 1 LNS 358; [1999] 5 MLJ 10). There was no appeal beyond the Federal Court. The plaintiff had exhausted all possible appeals. The order of Yew Jen Kie JC became final and conclusive (see Tiew Kun v. Tneu Seng Bee & Another Appeal [2010] 2 CLJ 68; [2010] 2 MLJ 213). By the same token, when the Federal Court refused leave to the defendant to appeal, the order of Linton Albert J became final and conclusive. Both the orders of Linton Albert J and Yew Jen Kie JC were amenable to the doctrine of res judicata. "Literally translated, res judicata is 'the fact has been decided'. It expresses a general public interest policy that the same issue (or cause of action) should not be litigated more than once even if the parties are different. It prevents vexatious litigation and any abuse of the courts' process on the premise that final judgments are binding and conclusive (see Henderson v. Henderson (1843) 3 Hare 100)" (Letchumanan Gopal v. Pacific Orient & Co Sdn Bhd [2011] 5 CLJ 866; [2011] 6 MLJ 788, per Abdul Hamid Embong JCA, as he then was, delivering the judgment of the court). Since finally adjudged, the orders of Linton Albert J and Yew Jen Kie JC became the truth between the plaintiff and defendant (see Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189).

unnecessary in light of subparagraph 19(1)(b) of Order 18 ROC

Whether OS 1045 and Suit 71 could be set aside

On the basis of the pleadings and the various affidavits filed before this Court, there is also no basis to set aside OS 1045 and Suit 71 trite law that a court order is valid until it is set aside. Refer to Ann Joo Steel Bhd v Pengarah Tanah Dan Galian Negeri Pulau Pinang & Anor And Another Appeal [2019] 9 CLJ 153 where the Federal Court had held that:- [48] It is also worthy of emphasis that even a default judgment is a good and enforceable judgment until it is set aside (see Pembinaan KSY Sdn Bhd v. Lian Seng Properties Sdn Bhd [1991] 1 CLJ 263; [1991] 1 CLJ (Rep) 343; [1991] 1 MLJ 100). The default judgment in this case until set aside was found to be a good and enforceable judgment citing in support Isaacs v. Robertson (supra) where the headnote reads: Orders made by a court of unlimited jurisdiction in the course of contentious litigation are either regular or irregular. It is misleading to seek to draw distinctions between orders that are 'void', in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders which are 'voidable', in the sense that they may be enforced until set aside, since any order must be obeyed unless and until it is set aside and there are no orders which are void ipso facto without the need for proceedings to set them aside.

Refer also to Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 2 CLJ 75 where the Federal Court held that a previous court order or decision could be set aside on the basis of illegality or when the previous order or decision is against the law. According to the Federal Court: - I take it to be well settled that even courts of unlimited jurisdiction have no authority to act in contravention of written law. Of course, so long as an order of a court of unlimited jurisdiction stands, irregular though it may be, it must be respected. But where an order of such a court is made in breach of statute, it is made without jurisdiction and may therefore be declared void and set aside in proceedings brought for that purpose. It is then entirely open to the court, upon the illegality being clearly shown, to grant a declaration to the effect that the order is invalid and to have it set aside. It is wrong to assume that such an order may only be corrected on appeal. It is therefore clear, in light of the principles established by high authority, that a court of unlimited jurisdiction, even in the absence of an express enabling provision, has inherent power to set aside its orders made in breach of written law. The ends of justice will not be met if such a power did not exist. And the procedural branch of the broad and flexible doctrine of estoppel known as res judicata finds no place in such a circumstance. Neither has the functus officio theory, which, upon close examination is merely part and parcel of the doctrine of res judicata, any role to play in the case.

In light of Badiaddin comes within the ambit and purview of what has been envisaged by the Federal Court. This Court does not find any basis for any illegality or even any instance of the previous courts in OS 1045 or Suit 71 having acted illegally to set aside the orders and decisions made in both cases. Abuse of Court process

a collateral attack against Suit 71 and OS 1045 when both suits have already been finally litigated upon. Refer to Penang Port Commission v Kanawagi S/O Seprumaniam [2009] 1 CLJ 169 where it was held by the Court of Appeal that: - "[54] ... According to the case of Smith v Linskills (a firm) and another [1996] 2 AH ER 353, CA at p 35; [1996] 1WLR 763 at p 769, that the word 'collateral' means 'an attack not made in the proceedings which gave rise to the decision which it is sought to impugn; not, in other words, an attack made by way of appeal in the earlier proceedings themselves"

This Court would thus have to proceed on the basis that Suit 71 and OS 1045 were correctly decided. In this regard, reference can be made to Satyadhyan Ghosel & Ors v. Sint Deorajin Dobi and another [1960] AIR SC 941 where the Indian Supreme Court held that: - The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

Looking at another perspective, if allowed to continue would open the floodgates to further challenges on court decisions already concluded between parties thus causing no end to litigation which is contrary to the principles that there must be finality in litigation.

As a result, the court process would be open to serious abuse if this identical to Suit 71 and OS 1045. Public Policy would also be affected as there will be no end in litigation.

Further reference on this point can also be made to Carl-Zeiss-Stiftung v. Rayner and Keeler Ltd and Others (No 2) [1966] 2 All ER 536 where the House of Lords had cautioned that: - The broader principle of res judicata is founded on the twin principles so frequently expressed in Latin that they should be at an end to litigation and justice demands that the same party shall not be harassed twice for the same cause. It goes beyond the mere record; it is part of the law of evidence for, to see whether it applies, the facts and reasons given by the judge, his judgment, the pleadings, the evidence and even the history of the matter may be taken into account ...

In SPPT Development Sdn Bhd v Worldwide Plantation Sdn Bhd [2025] 8 CLJ 59 our Court of Appeal had echoed similar sentiment when it held that: - It would be contrary to public policy and an abuse of the court's process if litigants are allowed to re-litigate final binding judgments, which they are not happy with. It would result in the same party being sued more than once for the same cause, there will be no end to litigation and the court's overburdened machinery will collapse under the weight of such re-litigation by every dissatisfied litigant.

As such, unless shown otherwise, which Court cannot allow the same mater to be relitigated by P as that the courts is of utmost importance can be referred to the reasonings given by the High Court, which this Court agrees, in Abdul Hamid Bin Haji Rahmad & Anor v Development & Commercial Bank Bhd & Anor [1993] 1 CLJ 35 where it was held that: - ... it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment... This rule has an ancient lineage... It is based upon a number of grounds. There is a public interest in the finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.

now attack it via collateral proceedings like the present action. In CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012, it was held by the Federal Court that: - Mere dissatisfaction with the outcome of the case or mere assertion that there was an error or injustice is not a ground to mount a collateral against a final order regularly obtained. Unless the final order is proved to be a nullity in the sense explained in Badiaddin, it cannot be attacked in collateral proceedings.

For reasons stated above, this Court is of a firm view that this is a fit for being obviously unsustainable against D.

Enclosure 18 is thus allowed with costs of RM5,000.00, subject to allocator fees. Dated 10th November 2025 (NOOR HISHAM BIN ISMAIL) JUDGE HIGH COURT, JOHOR BAHRU For the Plaintiffs : MESSRS CHRISTOPHER YEO & KP CHANG Unit 9-08 Menara MBMR No.1 Jalan Syed Putra 58000 Kuala Lumpur For the Defendant : M/s Shook Lin & Bok 20th Floor, Ambank Group Building 55, Jalan Raja Chulan 50200 Kuala Lumpur