1. ) LIM TECK HOE v 1. ) Abdul Nasir bin Abdul Ghaffar (BA-22NCvC-389-09/2024)

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EE KAI XIN ... PLAINTIFFS

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2.

NUR AINA ADILLA BINTI ABDUL NASIR (disaman dalam kapasitinya sebagai seorang individu dan rakan kongsi

NUR AUEFA AIENA BINTI ABDUL NASIR (disaman dalam kapasitinya sebagai seorang individu dan rakan kongsi

NG SEVEN RESOURCES SDN BHD 10/11/2025 14:34:04

GO SEARCH KATHARSIS 77 SDN BHD …DEFENDANTS GROUNDS OF JUDGMENT

This is the First, Third, Fourth, Fifth and Sixth Defendants’ application to strike out the Plaintiffs’ suit filed as Suit No. BA- 22NCvC-389-09/2024 (“Suit 389”) in the High Court at Shah Alam. The Defendants contend that the suit is barred by res judicata, amounts to an abuse of the process of the Court, and discloses no reasonable cause of action.

The background is straightforward. The Plaintiffs were the Defendants in an earlier action, Suit No. WA-22NCC-178- 04/2022 (“Suit 178”) heard before the High Court at Kuala Lumpur. That case concerned the same glove transaction which forms the basis of the present claim. After a full trial, judgment was entered against the Plaintiffs. The learned judge found that the Plaintiffs had themselves engaged in fraudulent misrepresentation and conspiracy, and drew adverse inferences under section 114(g) of the Evidence Act 1950 for failing to call or join the present Defendants.

The Plaintiffs have appealed against that decision to the Court of Appeal. That appeal is still pending.

While the appeal is ongoing, the Plaintiffs have now filed this suit in Shah Alam, raising allegations of fraud, conspiracy and unjust enrichment against the present Defendants — substantially repeating the same factual matrix already canvassed in Suit 178.

The main issues before this Court are: a. Whether the present suit is barred by res judicata or issue estoppel; b. Whether it amounts to an abuse of the process of the Court; and c. Whether the pleadings disclose a reasonable cause of action.

The Defendants’ application is made pursuant to Order 18 rule 19(1)(a) and (d) of the Rules of Court 2012, and under the Court’s inherent jurisdiction preserved by Order 92 rule 4. These provisions empower the Court to strike out any pleading that discloses no reasonable cause of action or amounts to an abuse of the process of the Court.

The principles governing this jurisdiction are well settled. Striking out is a discretionary but exceptional power. It should be exercised only in plain and obvious cases where the pleading is clearly unsustainable and cannot be cured by further evidence. This principle was laid down by the Federal Court in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7 (FC), where it was observed that if a pleading raises a question fit for trial, the Court should not strike it out.

A pleading may also be struck out where it offends the doctrine of res judicata or constitutes a collateral attack on an earlier judgment. The Federal Court in Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133 reaffirmed that the doctrine extends to matters which have been, or which ought properly to have been, raised in prior proceedings.

Similarly, in the Court of Appeal recognised that res judicata and issue estoppel are proper grounds for striking out under Order 18 rule 19(1)(d).

Applying these principles, I find that the present suit raises issues which have either been determined in Suit 178 or which the Plaintiffs could and should have raised there. The Plaintiffs were fully aware of the involvement of the present Defendants during the earlier proceedings. The trial record shows that the Plaintiffs themselves testified about the roles of these Defendants and had even considered taking joint legal action against them. Despite this, they neither named the Defendants as parties nor initiated third-party proceedings under Order 16 of the Rules of Court.

The Plaintiffs now contend that their cause of action only arose upon the delivery of judgment in Suit 178. With respect, that argument cannot be accepted. The pleadings and evidence show that the Plaintiffs were aware of the alleged misconduct long before judgment. Their decision not to pursue the Defendants was a matter of choice, not impossibility. The law does not permit a party to withhold a claim, await an unfavourable decision, and then commence a second action on the same facts.

The attempt to equate this suit with a third-party claim is also misconceived. A third-party claim must be filed within the same action, and with leave of court if made after defence. It cannot be revived later as an independent suit. This was made clear in Dr Aishah Tul Radziah bt L Hussin v Dr Suresh a/l Kumarasamy & Ors [2014] 11 MLJ 702, where the High Court held that failing to bring in a necessary party at the proper stage does not entitle a litigant to a second round of proceedings.

It is also significant that the judgment in Suit 178 is now under appeal. Allowing this action to continue while the earlier appeal is pending would risk inconsistent findings. The Plaintiffs cannot, at the same time, contest their liability before the Court of Appeal and pursue a parallel claim in this Court on the same subject matter. That would amount to duplicative proceedings and an abuse of the process of the Court.

The Plaintiffs have argued that striking out this suit would cause them prejudice as this is their only chance to pursue the Defendants. I am unable to agree. The Plaintiffs had every opportunity in Suit 178 to seek relief or contribution from these Defendants. Their failure to do so cannot now be corrected through a fresh action. Any hardship now faced arises from their own omission, not from this Court’s order.

Conversely, it would be unjust to compel the Defendants to defend matters that have already been adjudicated. The courts must uphold the principle of finality in litigation. As the Federal Court in Mat Shuhaimi (supra) observed, parties are entitled to one full and fair hearing, not multiple attempts under different labels.

Having considered the facts, pleadings, and authorities, I am satisfied that this is a plain and obvious case where the Plaintiffs’ claim is unsustainable. The suit is caught by res judicata and constitutes an abuse of the process of the Court within the meaning of Order 18 rule 19(1)(d). The Plaintiffs’ proper course is to pursue their pending appeal in Suit 178, not to commence a parallel action in another High Court.

The First, Third, Fourth, Fifth and Sixth Defendants’ application is therefore allowed. The Plaintiffs’ suit against the First, Third, Fourth, Fifth and Sixth Defendants is struck out in its entirety with costs to the Defendants, fixed at RM5,000.00 subject to the usual allocator. Dated 4 November 2025 -sgd-DATO’ ANITA BINTI HARUN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN To the parties’ solicitors: For the Plaintiffs : Edwin Raj Gnanamuthu & Raymond Mah Mun Kit (Messrs MahWengKwai & Associates) For the Defendants : Muhamad Aiman Bin Mohd Nahzeri & Wafiy bin Azman (Messrs Omayah Nawal & Partners)