Puncak Haruman Sdn Bhd v JW Development Sdn Bhd (BA-22NCvC-138-03/2024)

PUNCAK HARUMAN SDN BHD … PLAINTIFFS

ELIT BINARAYA SDN BHD

MOHD RASHID BIN MOHD ALI (IDENTITY CARD NO. : 701014-04-5173)

JWD DEVELOPMENT SDN BHD … DEFENDANTS

SYARIKAT BAMAS ENTERPRISE SDN BHD (COMPANY NO. : 204361-P)

LEE KAH KOON (IDENTITY CARD NO. : 760515-14-5703) SELAKU WAKIL ESTET LEE HAN CHO (IDENTITY CARD NO. : 470811-02-5209)

ABDUL WAHAB BIN ABDULLAH

ZULKARNAIN BIN OMAR (IDENTITY CARD NO. : 730730-12-5011) 29/04/2025 16:48:01 BA-22NCvC-138-03/2024 Kand. 111 S/N cZ7ulgNPqUiTt8agc9ryqA GROUNDS OF JUDGMENT A. INTRODUCTION [1] Enclosure 45 is an application by the 1st defendant –

To strike out the Writ dated 28 March 2024 and the Amended Statement of Claim dated 26.4.2024 pursuant to Order 33, rules 2 and 5, Order 18, rule 19(1)(a), (b), and/or (d), and/or Order 92, rule 4 of the Rules of Court 2012 (ROC 2012); and

(ii) To enter judgment for the 1st defendant’s counterclaim under Order 33 rule 5 ROC 2012. [2] On 28 February 2025, the High Court allowed Enclosure 45 with costs. The plaintiffs are dissatisfied with the order, and here are the reasons for my decision. B. BACKGROUND [3] The plaintiffs filed this Suit (Suit 138) on 28 March 2024 following the decision of the learned High Court Judge on 24 January 2024 in Kuala Lumpur High Court Civil Suit No: WA-22NCvC-694-09/2019 (Suit 694). [4] In Suit 694, JW Development Sdn Bhd (JWD) sued Puncak Haruman Sdn Bhd (Puncak), Elit Binaraya Sdn Bhd (Elit), Mohd Rashid bin Mohd Ali (Rashid), Syarikat BAMAS Enterprise Sdn Bhd (BAMAS), Lee Kah Koon (LKK), Abdul Wahab Abdullah (Wahab), S/N cZ7ulgNPqUiTt8agc9ryqA and Zulkarnain Omar (Zulkarnain). The High Court Judge allowed JWD’s claim against them after a full trial for, among others, as follows –

That the transfer of the following lands from BAMAS to Puncak and the registration of Puncak as the proprietor of the lands thereof be set aside/ cancelled: -

PT1138, HSD 78429, Pekan Kuang, District of

(ii) PT1139, HSD 78430, Pekan Kuang, District of Gombak;

(iii) PT1141, HSD 78432, Pekan Kuang, District of Gombak; and

(iv) PT1142, HSD 78433, Pekan Kuang, District of Gombak; [(i) to (iv) are hereinafter collectively referred to as “Subject Lands 1”;]

That the transfer of the following lands from BAMAS to Elit and the registration of Elit as the proprietor of the lands thereof be set aside/ cancelled:

PT1140, HSD 78431, Pekan Kuang, District of

(vi) PT1143, HSD 78434, Pekan Kuang, District of Gombak;

(vii) PT1144, HSD 78435, Pekan Kuang, District of Gombak;

(viii) PT1145, HSD 78436, Pekan Kuang, District of Gombak;

(ix) PT1146, HSD 78437, Pekan Kuang, District of Gombak;

PT1147, HSD 78438, Pekan Kuang, District of Gombak; and S/N cZ7ulgNPqUiTt8agc9ryqA

(xi) PT1148, HSD 78439, Pekan Kuang, District of Gombak; [(v) to (xi) are hereinafter collectively referred to as “Subject Lands 2”), whereas (i) to (xi) are hereinafter collectively referred to as “the said Lands”;].

Further and/or consequential to paragraphs (1) and (2) above: -

That the Fraudulent Parties (Defendants in the Original Suit) and/or each of them, whether by themselves, their directors, servants, agents or otherwise, howsoever, do surrender and/or deliver the original issue documents of title for the said Lands to JWD within seven (7) days from the date of the order of this

That the Registrar of Titles (“Registrar”) shall rectify the register documents of title and all other memorials and/or records and/or endorsements to record that BAMAS is the registered proprietor of the said Lands within thirty (30) days from the date of the Registrar’s receipt of the order of this Honourable Court;

That the Registrar shall rectify the issue documents of title to record that BAMAS is the registered proprietor of the said Lands within thirty (30) days from the date of the Registrar’s receipt of the original issue documents of title from JWD and to forward the original duly rectified issue documents of title to JWD after rectification;

That all costs in attending to and/or arising from and/or incidental to the above be borne by the Fraudulent Parties on the basis of joint and several liability; S/N cZ7ulgNPqUiTt8agc9ryqA

An order against BAMAS for specific performance of the Joint Venture Agreement dated 18.10.2000 (“Joint Venture Agreement”);

Damages against BAMAS in addition to specific performance of the Joint Venture Agreement which are to be assessed;

In addition to paragraphs (4) and (5) above: -

That BAMAS shall repay to JWD the Developer’s Advance of RM500,000.00 (“Developer’s Advance”) together with interests thereon at the rate of 12% per annum calculated from the date of payment by JWD to BAMAS until the date of full settlement by BAMAS to JWD;

That BAMAS shall repay to JWD half of the Alienation Costs in the sum of RM619,664.54 and such further sum to be assessed for BAMAS’ half share of the said Lands together with interests thereon at the rate of 12% per annum calculated from the date of payment by JWD to the relevant parties until the date of full settlement by BAMAS to JWD;

Damages against BAMAS to be assessed including but not limited to loss of profits;

An injunction restraining the Fraudulent Parties and/or each of them, whether by themselves, their directors, shareholders, servants, employees, agents or otherwise howsoever from dealing, selling, negotiating for the sale of, disposing, transferring, charging, encumbering, leasing, parting with possession and/or entering into any transactions with regard S/N cZ7ulgNPqUiTt8agc9ryqA to the said Lands in any manner whatsoever otherwise than for the purpose as set out in paragraphs (1) to (6) above;

Damages to be assessed and paid by the Fraudulent Parties to JWD on the basis of joint and several liability;

Exemplary and/or aggravated damages against the Fraudulent Parties to be paid to JWD on the basis of joint and several liability. [5] On 24 January 2024, all of the defendants in Suit 694 filed an appeal against the judgment to the Court of Appeal. However, on 20 March 2024, the defendants withdrew the appeal with no order as to costs. [6] In the Amended Statement of Claim of this Suit, the plaintiff seeks a declaration as follows-

That the Judgment of Suit 694 be set aside;

Declaration that the JVA is frustrated, therefore void;

A declaration that Land 1 be maintained in the name of

A declaration that Land 2 be maintained in the name of Elit;

JWD to pay Damages to the Plaintiffs;

JWD to pay Aggravated damages to the Plaintiffs;

JWD to pay Exemplary damages to the Plaintiffs;

JWD to pay to the Plaintiffs RM 300,000.00 being legal costs incurred by the Plaintiffs in defending Suit 694;

Pre-judgment interest at 5% from the date of filing Suit 694 on 19.09.2019; S/N cZ7ulgNPqUiTt8agc9ryqA

Interest at 5% per annum calculated daily on the Judgment sum from the date of the Judgment of this court until full and final settlement;

Costs; [7] In essence, the Plaintiffs claim to impeach the Judgment of Suit 694 and submit that the issues to be tried are as follows -

whether the Judgment is valid;

(ii) whether is there contravention of statutes and law;

(iii) whether there is fraud found in the Judgment;

(iv) whether the Judgment can be impeached; and

whether the Plaintiffs should abide by the Judgment. [8] The plaintiff submitted that there are numerous issues and disputed facts in the plaintiff’s claim against the 1st defendant herein, which will require extrinsic evidence and testimony from witnesses to be presented. Therefore, the suit filed herein should proceed to trial. C. THE 1st DEFENDANT’S APPLICATION [9] After the 1st defendant discovered that the plaintiff’s cause of action, among others, is to impeach the Judgment in Suit 694, this application was filed by the 1st defendant. [10] In Enclosure 45, the 1st defendant seeks as follows –

the Court's leave to determine nine preliminary issues pursuant to Order 33 Rule 2 and Rule 5, and to strike out or dismiss the plaintiffs’ claim against the 1st defendant pursuant S/N cZ7ulgNPqUiTt8agc9ryqA to Order 33 Rules 3 and 5 of ROC 2012. Additionally, the defendant seeks relief under Order 18 rule 19 (1)(a), (b), and/or (d) which are –

Whether the Plaintiffs have no locus standi and/or are otherwise not entitled to set aside the whole Judgment, which includes parts which are not against and/or addressed to and/or which do not apply to the

Whether the dissolution of BAMAS would entitle the Plaintiffs to set aside the whole Judgment against all 7 Defendants in the Original Suit ex debito justitiae? (Question 2);

Whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or applicable to the Plaintiffs have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? (Question 3);

Whether the Plaintiffs can obtain declarations that the Subject Lands 1 and Subject Lands 2 be maintained in the names of Puncak and Elit respectively when there was a finding of fraud against the Plaintiffs and a finding that Puncak and Elit were not bona fide purchasers for value by the Kuala Lumpur High Court which is of coordinate jurisdiction with this Honourable Court? (Question 4); S/N cZ7ulgNPqUiTt8agc9ryqA

Whether the Plaintiffs have any cause of action against JWD based on the JVA when the Plaintiffs are not a party or privy to the JVA and whether the Plaintiffs can rely on the JVA as a ground to impeach/set aside the whole Judgment and/or to obtain a declaration that the JVA is frustrated and void? (Question 5);

If the answer to Question 5 is in the affirmative, then whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or is applicable to the other Defendants in the Original Suit, including BAMAS, have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? (Question 6);

Whether the Plaintiffs can obtain a declaration that the JVA is frustrated and void when there was a finding by the Kuala Lumpur High Court which is of coordinate jurisdiction with this Honourable Court that the JVA is valid and enforceable? (Question 7);

Whether the pleadings in paragraphs 55 to 84 of the Statement of Claim are scandalous and/or in contempt of court when raised before this Honourable Court and not in an appeal before a superior court? (Question 8);

Whether there is an abuse of process of the court by the Plaintiffs which would entitle the 1st Defendant to the reliefs under its counterclaim against the Plaintiffs? (Question 9). S/N cZ7ulgNPqUiTt8agc9ryqA

(ii) Further to and/or consequential to paragraph (i) above, that the Plaintiffs’ action filed herein be dismissed pursuant to Order 33 rule 5 of the ROC 2012 and/or Order 92 rule 4 of the ROC 2012 and/or the inherent jurisdiction of this Honourable Court;

(iii) Further and/or in the alternative, that the Plaintiffs’ Writ dated 28.03.2024 (“Writ”) and Amended Statement of Claim dated 26.04.2024 (“Statement of Claim”) in respect of and/or against the 1st Defendant filed herein be struck out forthwith and that the Plaintiffs’ action herein in respect of and/or against the 1st Defendant be dismissed pursuant to Order 18 rule 19(1)(a) or Order 18 rule 19 (b) and/or (d) of the ROC 2012 and/or Order 92 rule 4 of the ROC 2012 and/or under the inherent jurisdiction of this Honourable Court;

(iv) Further and/or in the alternative, and in lieu of the striking out or dismissal of the Plaintiffs’ Writ and Statement of Claim filed herein with costs:

That paragraphs 18 to 20, last paragraph of paragraph 25, entries dated 16.02.2000, 05.03.2013 with respect to Shandos in paragraph 28, 34 to 41, 42 to 48, 52 to 53, 54, 86 to 87 and 88(a) to (e) of the Statement of Claim be struck out with costs if Question 5 and/or Question 6 is/are answered in the negative;

(vi) That paragraphs 55 to 84 of the Statement of Claim be struck out with costs if Question 8 is answered in the affirmative;

(vii) That paragraph 92(a) of the Statement of Claim be struck out with costs if Question (1) is answered in the affirmative and/or if Question 3 is answered in the negative and/or if Question 5 S/N cZ7ulgNPqUiTt8agc9ryqA is answered in the negative and/or if Question 6 is answered in the negative;

(viii) That paragraph 92(b) of the Statement of Claim be struck out with costs if Question 5 and/or Question 6 and/or Question 7 is/are answered in the negative; and/or

(ix) That paragraphs 92(c) and (d) of the Statement of Claim be struck out with costs if Question 4 is answered in the negative; [11] The 1st defendant also seeks that his counterclaim be allowed pursuant to Order 33 rule 5 ROC 2012 and for this Court grant the following: a) A declaration that the Plaintiffs in filing and commencing this Suit and the interlocutory applications thereunder is for a collateral purpose and amounts to an abuse of process; b) Further to paragraph (a) above, pursuant to paragraph 17 of the First Schedule and section 25(2) of the Courts of Judicature Act 1964: i. a declaration that the Plaintiffs are vexatious litigants; and ii. an order to restrain the Plaintiffs from commencing any legal proceedings in any court against the JWD, save by leave of a Judge; S/N cZ7ulgNPqUiTt8agc9ryqA c) Damages for abuse of process of the court to be assessed and paid by the Plaintiffs to JWD on a joint and several liability basis; d) Exemplary and/or aggravated damages; e) Interest on damages as determined by this Honourable Court; f) Costs on an indemnity basis; and g) Such further relief and/or other order that this Honourable Court deems fit and just; [12] The 1st defendant also seeks costs, any further order, and/or other reliefs that this Court deems fit and proper to grant. D. APPLICABLE LEGAL PRINCIPLES The law on Striking Out [13] Order 33, Rules 2 and 5 of ROC 2012 provide that where questions or issues may be raised and tried before the trial, and if the decision substantially disposes of the matter or renders a full trial unnecessary, this Court may dismiss the matter or make such order as may be just. [14] The provision of Order 33, Rule 2 of ROC 2012 is as follows-S/N cZ7ulgNPqUiTt8agc9ryqA 2 Time of trial of questions or issues The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. [15] In the case of Federal Insurance Co v Nakano Singapore (Pte) Ltd [1991] 2 SLR, it was determined that the rule aims to reduce costs and time in situations where addressing an issue as a preliminary question of law or fact could significantly resolve the case or matter at hand. [16] Similarly, the Court of Appeal in Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2007] 7 MLJ 706 held that the court’s power under RHC Order 33 rule 2, which is wider in scope than O 14A, will not be exercised unless the trial of the issue results in substantial savings in judicial time and costs. [17] In considering the applicability of Order 33 rule 2, the Court of Appeal in the case of Petroleum Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 at page 31 held as follows- “[41] There are authorities in support of the proposition that merely because an issue of law takes a little longer to determine does not mean that the court should refuse the application (see Korso Finance Establishment Anstalt v John Wedge). In Ringtower Holding Plc, Re (1989) BCC 82 at p 84, it was held that if the applicants can satisfy the court that the petitioner’s claims are manifestly unsustainable or are an abuse of the process, justice requires that the petition (even one running to 28pp) be struck out forthwith. This case was followed in Tuan Haji Ishak bin Ismail & Ors v Leong Hup Holdings Bhd and other appeals [1996] 1 MLJ 661 … S/N cZ7ulgNPqUiTt8agc9ryqA [18] Whereas, under Order 18 rule 19(1)(a) or Order 18 rule 19(1)(b) and/or (d) ROC 2012 this Court may strike out the action if the pleadings disclose no reasonable cause of action, or is scandalous, frivolous or vexatious and/or is otherwise an abuse of the process of the Court: The law on Impeachment of Judgment [19] In Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, the Federal Court held that: It is of course settled law as laid down by the Federal Court in Hock Hua Bank's case that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. … But one special exception to this rule (which was not in issue and therefore not discussed in Hock Hua Bank) is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction … ... the contravention should be one which defies a substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction. It should not for instance be applied to a defect in a final order which has contravened a procedural requirement of any written law. The discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. In all cases, the normal appeal procedure should be adopted to set aside a defective order, unless the aggrieved party could bring himself within the special exception. ... 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. [20] The Federal Court in CIMB Investment Bank Bhd (previously known as Commerce International Merchant Bankers Bhd) v S/N cZ7ulgNPqUiTt8agc9ryqA Metroplex Holdings Sdn Bhd [2014] 6 MLJ 779 at page 790A adopted the Court of Appeal's commentary in Hew Hooi Chun v KL Teksi Radio Bhd [2011] 3 MLJ 754 on Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra) as follows: [11] … There must be ‘a breach of the rules of natural justice or a contravention of a statute which is a sine qua non to invoke the very limited jurisdiction of a court to have its orders declared as void’ (Annie Quah Lay Nah v Syed Jafer Properties Sdn Bhd & Ors [2007] 1 MLJ 225 per Gopal Sri Ram JCA). The order must be tainted by fraud or some other vitiating element and not a judgment that was merely irregular in the sense that it is one obtained in breach of a rule of court or of practice ... [21] The Supreme Court in the case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd ("Asia Commercial Finance") [1995] 3 MLJ 189, have held that:

When a matter between two parties has been adjudicated by a court of competent jurisdiction, they and their privies are not permitted to litigate once more, the res judicata, as the judgment becomes the truth between such parties. An estoppel per rem judicatum has been created as a result.

There are two kinds of estoppel per rem judicatum, ie cause of action estoppel and issue estoppel. The cause of action estoppel prevents reassertion of a cause of action which has been determined in a final judgment by the same parties. On the other hand, the issue estoppel prevents the contradiction of the correctness of the final judgment by the same parties in a subsequent proceeding. Further, the parties are also prevented from asserting a cause of action which should have been brought forward in the earlier action, but was not, whether deliberately or inadvertently. …

… All rights and liabilities of both parties had merged into the judgment of the first proceeding and the effect of a cause of action estoppel was absolute; S/N cZ7ulgNPqUiTt8agc9ryqA E. ISSUES TO BE DECIDED [22] Both parties have filed their written submission on nine questions or issues of fact and/or law to be determined before the trial of this matter pursuant to Order 33 rule 2 and/or O92 rule 4 as follows-i. Whether the plaintiffs have locus standi and/or otherwise not entitled to set aside the whole Judgment which includes parts which are not against and/or addressed to and/or which do not apply to the plaintiffs (Question 1). ii. Whether the dissolution of BAMAS would entitle the plaintiffs to set aside the whole Judgment against all 7 defendants in the Original Suit ex debito justitiae? (Question 2). iii. Whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or is applicable to the Plaintiffs have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? (Question 3). iv. Whether the Plaintiffs can obtain declarations that the Subject Lands 1 and Subject Lands 2 be maintained in the names of Puncak and Elit respectively when there was a finding of fraud against the Plaintiffs and a finding that Puncak and Elit were not bona fide purchasers for value by the Kuala Lumpur High S/N cZ7ulgNPqUiTt8agc9ryqA Court which is of coordinate jurisdiction with this Honourable Court? (Question 4); v. Whether the plaintiffs have any cause of action against JWD based on the JVA when the plaintiffs are not a party or privy to the JVA and whether the plaintiffs can rely on the JVA as a ground to impeach the whole Judgment and/or to obtain a declaration that the JVA is frustrated and void (Question 5). vi. If the answer to Question (5) is in the affirmative, then whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or is applicable to the other Defendants in the Original Suit, including BAMAS, have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? (Question 6) vii. Whether the Plaintiffs can obtain a declaration that the JVA is frustrated and void when there was a finding by the Kuala Lumpur High Court which is of coordinate jurisdiction with this Honourable Court that the JVA is valid and enforceable? (Question 7) viii. Whether the pleadings in paragraphs 55 to 84 of the Statement of Claim are scandalous and/or in contempt of court when raised before this Honourable Court and not in an appeal before a superior court? (Question 8) S/N cZ7ulgNPqUiTt8agc9ryqA [23] As to the 1st defendant’s counterclaim, the issues to be decided is whether there is an abuse of process of the court by the Plaintiffs that would entitle the 1st Defendant to the reliefs under its counterclaim against the Plaintiffs? (Question 9). F. ANALYSIS AND FINDING [24] Before further addressing Questions 1 to 9, I would like to analyse the plaintiff’s claim against the 1st defendant. It is pertinent, as the plaintiffs herein seek to impeach the Judgment of the Kuala Lumpur High Court in Suit 694, which is of concurrent jurisdiction. [25] Among the reasons given is that the Judgment was tainted by fraud and violated various statutes, resulting in the deprivation of Bamas’s land, which was purchased for a valuable consideration of RM2 million. Therefore, according to the plaintiffs, the focus of this Court is whether fraud was practised in Suit 694 rather than whether the plaintiffs were parties and/or privy to the JVA. [26] In the case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra), the Federal Court held that – It is settled law that one High Court cannot set aside a final order regularly obtained from another High Court of concurrent jurisdiction. But, one special exception to this rule is where the final judgment of the High Court could be proved to be null and void on ground of illegality or lack of jurisdiction. [27] It is an established principle that this Court should exercise its discretion judicially to invoke its inherent jurisdiction in exceptional cases where the defect is of such a serious nature that there is a S/N cZ7ulgNPqUiTt8agc9ryqA real need to set aside the defective order to allow the court to do justice. [28] To the plaintiff, their interest would be adversely affected by the judgment, as it is unfavourable to them, impossible to perform, and tainted with fraud and perjury. The plaintiffs refer to the Federal Court decision in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra) and Ang Game Hong & Anor v Tee Kim Tiam & Ors [2020] 1 MLJ 638, that where the final order of the High Court was null and void because of illegality or lack of jurisdiction, it could be set aside by another High Court of concurrent jurisdiction. An order made in breach of natural justice was clearly such an order. [29] To support their contention, the plaintiffs also refer to the case of K Ramalingam a/l Krishnamoorthy & Ors v Mohammad Razin bin Abdullah (in his personal capacity and his capacity as the registrar of societies) & Anor Appeals [2017] 3 MLJ 103. [30] Whereas the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1 held that – [44] The question as to whether the fraud referred to in s44 of the Act speaks about intrinsic or extrinsic fraud is an issue of law that requires lengthy argument and mature consideration at trial. It is part of the court’s function at this stage of the litigation to decide difficult questions of law, which call for detailed arguments and mature considerations. S/N cZ7ulgNPqUiTt8agc9ryqA [31] Further to that, in dismissing the appeal, the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (supra) also held that - [1] it is trite that the impeachment action should be by way of a fresh action and not in the same action where the impugned earlier judgment was made. The respondent’s claim in the present case was by way of a fresh action based on fresh evidence which could not have been obtained at the earlier trial. [32] The appellant in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (supra) submitted a plan as evidence for the 10,000-acre forest concession area in Kg Nenasi Daerah Pekan Pahang. According to the records from the State Forestry Department, the respondent claimed that no approval was granted for the area delineated in the Blue Plan. Unfortunately, the appellant chose not to call the maker of the licensed surveyor who approved and signed the Blue Plan. Consequently, the respondent cannot challenge the validity of the said plan. The learned trial judge ruled in favour of the appellant. The Court of Appeal upheld the High Court's decision. [33] Then, the respondent initiated a fresh action against the appellant to impeach the judgment of the trial judge on the premise that the said judgment was entered as a result of fraud and perjured evidence provided by the appellant’s witness, based on new evidence that could not have been obtained or presented at the earlier trial, as clearly stated in paragraphs 22-29 of the Statement Of Claim. In the Statement of Claim, the respondent pleaded the specific particulars of the perjury committed by the witness and outlined the particulars S/N cZ7ulgNPqUiTt8agc9ryqA of deceit. The respondent contends that the deception had permeated and tainted the entire judgment. [34] In the present case herein, the plaintiffs cited their reasons for challenging the judgment of the learned High Court Judge in Suit 694, as outlined in the Amended Statement of Claim, among others, as follows –

The judgment contravened various statutes and laws.

(ii) JWD also suppressed numerous material facts from the Court and misled the Court as the Plaintiff in Suit 694, resulting in the pronouncement of an unlawful Judgment.

(iii) Although time is always of the essence in the JVA, the Learned Judge in his Grounds of Judgment dated 24.01.2024 (“GOJ”) held that an indefinite extension of time exists. This has rendered the Judgment unlawful, as it compels the performance of an alleged frustrated contract (the JVA).

(iv) The Judgment requires Puncak and Elit to transfer the Lands to BAMAS. However, this cannot be done as BAMAS has been dissolved since 16.09.2022. Therefore, the Plaintiffs plead that it is unlawful and impossible to compel the transfer of the Lands to BAMAS, which is a non-existent party.

The deceased, Lee Han Cho, who was the director and shareholder of BAMAS at the material time, died intestate without a Letter of Administration granted by the Court or the S/N cZ7ulgNPqUiTt8agc9ryqA relevant authorities. Therefore, the transfer of the Lands contravenes Section 68 of the Probate and Administration Act 1959 and is impossible to perform.

(vi) The Learned Judge has delivered the Judgment without sufficient appreciation of the law and facts, rendering the Judgment unlawful and impossible to perform.

(vii) The judgment contravened various statutes, such as the Probate and Administration Act 1959, the National Land Code, the Companies Act 2016, and the Contracts Act 1950.

(viii) The learned judge also failed to sufficiently appreciate various laws and facts on the matters hereinafter pleaded.

(ix) The judgment requires the registrar to rectify the titles.

However, Suit 694 proceeded without the Registrar, as JWD did not name the Registrar in Suit 694. The Plaintiffs plead that failing to name the Registrar as a party in Suit 694 is fatal for JWD, which has made the Judgment impossible to perform.

(xi) JWD also failed to invoke Section 417 of the National Land Code in Suit 694 for an order for the Registrar to perform or rectify. In the absence of such invocation, the Plaintiffs argue that the Court in Suit 694 had no power to compel the Registrar to rectify the titles, thereby rendering the Judgment impossible to perform. S/N cZ7ulgNPqUiTt8agc9ryqA

(xii) The Learned Judge in his GOJ held that Puncak and Elit did not enter a caveat on the Lands to protect their interest, which allegedly raised suspicions about the transfer of the Lands. However, the Plaintiffs plead that the Learned Judge, in making this finding, had also departed from Stare Decisis, where it is trite that registration is everything according to the Torrens system in Malaysia. As such, the title or interest of any person being registered as the proprietor of any land shall be indefeasible.

(xiii) In the Learned Judge’s GOJ in Suit 694, it was held that the purchase price of the Lands from BAMAS to Puncak and Elit at RM 1,000,000.00 respectively is suspicious and undervalued. The Plaintiffs plead that the Learned Judge, in arriving at his decision, failed to consider the expert evidence from the valuers of the 1st to 3rd Plaintiffs and the 2nd and 5th Defendants.

(xiv) During the trial in Suit 694, JWD also failed to call or subpoena the officers from JPPH to support the proposed valuation. Despite the absence of the JPPH officers at the trial, the Learned Judge preferred the valuation proposed by JWD. In fact, the Plaintiffs plead that the JPPH officers responsible for the valuation of Lands did not conduct a site visit to the Lands.

(xv) The Plaintiffs plead that the transfers of the Lands from BAMAS to Puncak and Elit respectively were indefeasible by law and should not be transferred back to BAMAS, which no S/N cZ7ulgNPqUiTt8agc9ryqA longer exists, as they were conducted with bona fide purchase for value.

(xvi) The Learned Judge also erred in his findings in the Ground of Judgment regarding Rashid’s financial means. There were no materials for the Learned Judge to decide on Rashid’s financial means in Suit 694. In particular, the learned Judge found that Rashid was not in a position to purchase the Lands. The Plaintiffs plead that Rashid is within the financial means to purchase the Lands and owns substantial assets. Therefore, the Plaintiffs argue that the Learned Judge’s findings on Rashid’s financial means are a reckless assumption without basis.

(xvii) The learned Judge, in finding that the purchase price for Land 1 and Land 2 at RM1,000,000.00 respectively was not substantiated, failed to consider Section 245 of the Companies Act 2016, which stipulates that all companies shall retain the accounting and other records for only 7 years. The necessary records to substantiate the said purchase price have lapsed for 7 years since the commencement of Suit 694.

(xviii) The judgment was granted by the learned judge without sufficient appreciation of the law and facts, rendering it impossible to perform.

(xix) Based on the matters pleaded hereinabove and the GOJ, the Learned Judge did not sufficiently consider the evidence, documents, and submissions presented by the Plaintiffs S/N cZ7ulgNPqUiTt8agc9ryqA during the proceedings in Suit 694. The Plaintiffs plead that this has breached their rights to be heard, as enshrined in Article 8 of the Federal Constitution.

(xx) JWD consistently presented a false narrative to the Court in Suit 694, claiming that the project under the JVA can be developed, while failing to inform the Court that the entire project involves Shandos’ Lands and BAMAS’s Lands, which were approved under one Master Plan as an integrated and mixed development that cannot be separated. The Plaintiffs assert that JWD should be aware that the JVA is impossible to perform in the first place. [35] At this juncture, I refer to the established legal principles in appellate intervention as decided in the case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 where the Federal Court reaffirmed that appellate courts should not interfere with findings of fact by a trial judge unless it is shown that the decision is plainly wrong. [36] In Merita Merchant Bank Singapore Ltd v Dewan Bahasa dan Pustaka [2014] 9 CLJ 1064, it was held as follows - [45] It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrust the primary duty of evaluation of the evidence. However, the appellate court is under a duty to intervene in a case where the trial court has so fundamentally misdirected itself. In our judgment, we find that there was insufficient judicial appreciation by the learned trial judge of the pleadings and contemporaneous evidence in the instant case when she allowed Merita's claim. Such erroneous finding warranted appellate interference which the Court of Appeal rightfully done so, and we have no reason to disagree. S/N cZ7ulgNPqUiTt8agc9ryqA [37] In my opinion, the contentions put forth by the plaintiffs above, for instance the allegations that JWD’s witnesses intentionally concealed and suppressed pertinent facts from the learned High Court Judge in Suit 694, as well as provided false testimonies asserting that Bamas’s land can be developed, that the plaintiffs do not constitute bona fide purchasers and other articulated facts within the Amended Statement of Claim warrant determination on appeal. [38] The Federal Court in CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd [2014] 9 CLJ 1012 at paragraph 13 held 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 attack 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. [39] In deciding this application, I must sufficiently direct my mind, if at all, to the fundamental issue of whether the plaintiff’s case before this Court falls within the category of cases that attract ex-debito justitiae. [40] I am guided by the principle enunciated by the Federal Court in Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (supra) that the discretion to invoke the inherent jurisdiction should also be exercised judicially in exceptional cases where the defect is of such a serious nature that there is a real need to set aside the defective order to enable the court to do justice. The normal appeal procedure should be adopted to set aside a defective order in all cases. S/N cZ7ulgNPqUiTt8agc9ryqA [41] Peh Swee Chin PCJ also held in Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra), that when a judgment in the High Court has been perfected, a party to the judgment generally, apart from any appeal, cannot reopen the matter finalised in the judgment by seeking to alter it or amend it for the court would be functus officio by virtue of the ration of Hock Hua Bank v Sahari bin Murid. [42] In Hock Hua Bank, the Federal Court held that if a judgment or order has been obtained by fraud or where further evidence which could not possibly be adduced at the original trial hearing is forthcoming, a fresh action will lie to impeach the original judgment. [43] In Datuk Hj Ishak bin Ismail v Kenanga Investment Bank Bhd [2012] 7 MLJ 840, it was held that – [68] However,, before the court can set aside the judgment on grounds of fraud, the court will require a strong case to be established. The burden is on the plaintiff to show that there was fraud. Unless it is shown that the fraud alleges raise a reasonable prospect of success and was discovered after judgment, the action will be stayed or dismissed as vexatious. (refer to Halsbury’s Law of England, Vol. 26(4th ed) at p.285. [44] Having compared the grounds for impeachment in the case of Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor (supra) with the present case and in light of the Amended Statement of Claim, I find that the plaintiffs fail to plead any facts to support the assertion that the said judgment was entered as a result of fraud and perjured evidence by the JWD’s S/N cZ7ulgNPqUiTt8agc9ryqA witness and relying on fresh evidence that could not have been obtained and presented at the earlier trial (Suit 694). [45] I also consider the principle of res judicata and abuse of court process. The principles of res judicata and abuse of court process prevent a party from reopening matters already decided or that ought properly to have been raised earlier, ensuring the finality of litigation and protecting judicial integrity. Reopening is justified only in cases where it is clearly shown that the prior decision is null and void due to a breach of substantive statutory prohibition. Absent such illegality, the courts are bound to uphold the earlier decision and dismiss attempts to re-litigate. [46] In Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, the Federal Court held that the doctrine of res judicata bars a party from re-litigating claims or issues that have already been finally determined or could and ought to have been raised earlier. [47] To support my findings herein, I also refer to the case of S & M Shopping Arcade Sdn Bhd v CH Williams Talhar and Wong Sdn Bhd [2007] 7 MLJ 468, Tengku Maimun JC (as Her Ladyship then was, now The Right Honourable Chief Justice) held on pages 472- 473 that: [9] Having read the judgment of the learned judge, I found that the issues have been litigated and the learned judge had in fact considered those questions wherein he said at p 76 of the judgment that ‘..the valuer had inspected the premises and so the valuation report was not something that was snapped up in the air’. S/N cZ7ulgNPqUiTt8agc9ryqA [10] The rights and liabilities of the plaintiff and the valuer ie the defendant herein in my view, had merged into the judgment delivered by the learned judge in the earlier proceedings and the judgment being final given the discontinuance of the notice of appeal to the Court of Appeal, the plaintiff in my view should be estopped from proceeding with this action. [11] Quite apart from the finding made by the learned judge above, there is another aspect of issue estoppel which ought to be considered here i.e. whether such issues as submitted by learned counsel for the plaintiff are issues which might have been and which were not brought forward in the earlier proceedings before Abdul Malik J. To my mind those issues should have been brought in the earlier proceedings and hence even if the submission of learned counsel for the plaintiff is to be accepted that the issues were not actually considered by the learned judge, the plaintiff is still caught by the doctrine of estoppel per rem judicatum as stated in the case of Asia Commercial Finance. In the earlier proceedings where the plaintiff challenged the valuation report prepared by the defendant as being inaccurate, the defendant should and could have been brought as a party wherein the alleged breach of duty of care in preparing the valuation could appropriately be determined. [12] In the circumstances I upheld the preliminary issue raised by the defendant and dismissed the plaintiff's claim with costs. [48] Having reviewed the Ground of Judgment by the learned Judge in Suit 694, I concur with the position of the first defendant that all issues presented by the plaintiffs in this case were submitted, argued by the respective parties and assessed by the learned Judge. It is not within the purview of this Court to re-examine the plaintiff’s case. The matter at hand involves the same parties and the same facts. I then refer to the nine questions established by the 1st defendant in Enclosure 45. S/N cZ7ulgNPqUiTt8agc9ryqA Question 1: Whether the plaintiffs have locus standi and/or otherwise not entitled to set aside the whole Judgment which includes parts which are not against and/or addressed to and/or which do not apply to the plaintiffs [49] Regarding Question 1, the plaintiffs submit that the judgment in Suit 694 is based on the Joint Venture Agreement (JVA) entered into between JWD and Bamas to develop part of the lands on Lots 134, 135, and 864 in the mixed development project. [50] I refer to the plaintiffs’ submission in reply as follows –

6.1.10. In any case, JWD does not have any registrable and/or caveatable interest on the Lands, as the JVA is a joint venture based on profit sharing. It is trite law that to be caveatable, the interest must be an interest in the land and that interest must be capable of registration. This shows that the Learned Judge is totally unaware of the existing law to deliver such Judgment;

6.1.11 Therefore, by this fact alone, Puncak and Elit paid the respective purchase price of RM1,000,000 in view of the condition of the land containing the existence of fish ponds and also the structure of the Lands that will incur high costs for a development such as:-

paying for the process to amalgamate the Lands;

paying for the process to surrender the Lands,

paying for the process to obtain the new building plans; and

paying for the process to obtain new development order to carry out further development on the Land.

not only that, but there were also squatters on the Lands that would devalue the land severely. [51] The plaintiffs asserted that they have locus standi to commence impeachment proceedings herein. [52] The plaintiffs also asserted that the 1st defendant failed to read the Judgment in its entirety and refer to the Federal Court case of Nguyen Tri Dung v Public Prosecutor, [2016] 12 MLJ 62, which S/N cZ7ulgNPqUiTt8agc9ryqA states that any judgment must be read in its entirety rather than in isolation from any individual parts or paragraphs. Meanwhile, the 1st defendant submitted that the plaintiff has no locus standi to set aside the entire judgment, as certain parts do not affect the plaintiff. [53] Based on the finding of the trial Judge in Suit 694, this issue has been considered. I also refer to my analysis in paragraph 20 to 48 above. [54] The plaintiff also challenges the Judgment in Suit 694 and averred that despite the fact that there was no communication whatsoever between BAMAS and JWD regarding the procurement of the individual titles that should be obtained within 9 months of the payment of premium, the non-fulfilment of the said condition precedent, the High Court Judge made a finding that the transfer of Subject Lands 1 from BAMAS to Puncak and the registration of Puncak as the proprietor of Subject Lands 1 be set aside/ cancelled, and the transfer of Subject Lands 2 from BAMAS to Elit and the registration of Elit as the proprietor of Subject Lands 2 be set aside or cancelled. [55] The plaintiff further submit as follows –

6.1.10. In any case, JWD does not have any registrable and/or caveatable interest on the Lands, as the JVA is a joint venture based on profit sharing. It is trite law that to be caveatable, the interest must be an interest in the land and that interest must be capable of registration. This shows that the Learned Judge is totally unaware of the existing law to deliver such Judgment; …

The Plaintiffs submit that D1 is merely cherry-picking parts of the grounds of judgment, and not considering the grounds as a S/N cZ7ulgNPqUiTt8agc9ryqA whole, where the Plaintiffs have already extensively submitted in the principal submissions that the Judgment clearly contravened various statutes. It is reiterated that it is the Plaintiffs’ case that the Judgment was made without sufficient appreciation of the law and facts. [56] It is my considered view that, based on the plaintiff’s submission, the grounds for contesting the Judgment in Suit 694 are directly related to the principle of appellate intervention. [57] All material facts relate to BAMAS, the joint venture agreement, including the status of the land, have been presented before the learned trial Judge in Suit 694, and no new evidence has been introduced in the Amended Statement of Claim. [58] For Question 1, I also refer to the principle in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd (supra) that – The doctrine of res judicata is not confined to causes of action or issues which the Court is actually asked to decide or has already decided. It covers also causes of action or issues or facts which, though not already decided as a result of the same not being brought forward due to negligence, inadvertence or deliberately, are so clearly part of the subject matter of the litigation and so clearly could have been raised, that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them. [59] I am satisfied that the plaintiffs lack locus standi and are not entitled to set aside the entire judgment, which includes parts that are not against, addressed to, or applicable to the plaintiffs. S/N cZ7ulgNPqUiTt8agc9ryqA Question 2: Whether the dissolution of BAMAS would entitle the plaintiffs to set aside the whole Judgment against all 7 defendants in the Original Suit ex debito justitiae? [60] The plaintiffs’ position was that BAMAS had been dissolved on 16.9.2022. This fact was known to the parties during the trial in Suit 694 and is not new evidence. The plaintiff averred that the dissolution status of BAMAS was not brought to the Court's attention by JWD throughout the proceedings in Suit 694. [61] In my considered view, the argument that the Suit 694 judgment is impossible to perform, along with the plaintiffs' dissolution of Bamas, is without merit. Section 555(1) of the Companies Act 2016 provides a period to apply for the reinstatement of Bamas. [62] Regarding who is entitled to file a motion to set aside an order, the case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd (supra) determined the following - Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. [63] Therefore, Question 2 is answered negatively. I will now address Questions 3 and 4 concurrently. Question 3: Whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or is applicable to the Plaintiffs have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? S/N cZ7ulgNPqUiTt8agc9ryqA [64] It is trite that the burden lies with the plaintiffs to prove that the Judgment in Suit 694, which affects the plaintiffs, was made in contravention of statute and obtained as a result of JWD's fraud. [65] The 1st defendant submitted that the plaintiffs did not plead to assert that the setting aside of the transfers and titles of Puncak and Elit in the joint venture lands, as ordered by the Suit 694 judgment, was made in contravention of statute or obtained through the fraud of JWD. In my opinion, this is not new evidence and has been ventilated in Suit 694 and is part of the trial Judge’s findings. [66] In Tenaga Nasional Berhad v Ichi-Ban Plastic (M) Sdn. Bhd. & Other Appeals [2018] 3 CLJ 557, the Federal Court has held that – [96] ... In this regard, it is a well-settled legal principle that the court should not decide on an issue that was not pleaded by the parties. Question 4: Whether the Plaintiffs can obtain declarations that the Subject Lands 1 and Subject Lands 2 be maintained in the names of Puncak and Elit respectively when there was a finding of fraud against the Plaintiffs and a finding that Puncak and Elit were not bona fide purchasers for value by the Kuala Lumpur High Court which is of coordinate jurisdiction with this Honourable Court? [67] In Badiaddin bin Mohd Mahidin v Arab-Malaysian Finance Bhd (supra) the Federal Court recognised that while a final judgment may, in rare and exceptional circumstances, be set aside on grounds of illegality or breach of natural justice, such circumstances must be “manifest and obvious on the face of the record” and must involve a fundamental defect. Having scrutinised the pleaded facts in the Amended Statement of Claim, I find that the S/N cZ7ulgNPqUiTt8agc9ryqA plaintiffs failed to demonstrate any fundamental illegality that would justify relitigating Suit 694 before this Court. [68] Further, in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, the Court of Appeal affirmed that parties must not be permitted to relitigate matters which have been conclusively decided, save in the most exceptional of cases. Similarly, in CIMB Bank Bhd v Maybank Trustees Bhd & Others [2014] 3 MLJ 169, the Court reiterated the importance of safeguarding the principle of finality in litigation to prevent an abuse of the court’s process. [69] The doctrine of res judicata bars a party from re-litigating claims or issues that have already been finally determined or could and ought to have been raised earlier. [70] In this case, the plaintiff’s attempt to reopen the litigation is an abuse of the court process. It seeks to relitigate issues already decided between the same parties and based on the same factual circumstances. No exceptional circumstances have been presented that would justify a departure from the binding principles established by the superior courts. Therefore, the plaintiff’s claim must be dismissed to preserve the finality of judicial proceedings and to prevent injustice to the 1st Defendant. In response to Questions 3 and 4, the Court responded negatively. Question 7: Whether the Plaintiffs can obtain a declaration that the JVA is frustrated and void when there was a finding of fact by the S/N cZ7ulgNPqUiTt8agc9ryqA Kuala Lumpur High Court which is of coordinate jurisdiction with this Honourable Court that the JVA is valid and enforceable? [71] Considering the analysis and reasons discussed in paragraphs 24 to 48 in this part and addressing Questions 1, 2, 3, and 4, I reiterated my reasons while answering Question 7. [72] Furthermore, it is part of the finding of the trial Judge in Suit 694 that JWD had fulfilled its obligations under the JVA by providing substantial funds for the mandatory payment of premiums of the said Lands and that BAMAS has been unjustly enriched when BAMAS acquired the said Lands as a result of JWD having advanced RM2,114,844.50. All the Defendants in the Suit 694 then committed fraud to procure the said Lands by deceptively transferring the said Lands from BAMAS to Puncak and Elit without any monetary exchange. [73] It is my considered view that the Court of Appeal serves as the appropriate venue for the plaintiffs to challenge the finding of the learned trial Judge in Suit 694. Hence, Question 7 is answered negatively. Question 5: Whether the plaintiffs have any cause of action against JWD based on the JVA when the plaintiffs are not a party or privy to the JVA, and whether the plaintiffs can rely on the JVA as a ground to impeach the whole Judgment and/or to obtain a declaration that the JVA is frustrated and void. Question 6: If the answer to Question 5 is in the affirmative, then whether the conditions for impeaching/setting aside that part of the Judgment which is against and/or is applicable to the other S/N cZ7ulgNPqUiTt8agc9ryqA Defendants in the Original Suit, including BAMAS, have been satisfied so that this Honourable Court can impeach/set aside the same under the inherent jurisdiction of this Honourable Court as a special exception to the general rule that one High Court cannot set aside a final order of another High Court of coordinate jurisdiction? [74] I have reviewed the plaintiff’s submission, particularly paragraphs 37 to 64. In my opinion, the plaintiff is reiterating the same facts and issues while referencing the testimony provided by the witness during the trial in Suit 694. [75] In Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 at paragraph [2], the Federal Court held that - The doctrine of res judicata is not confined to causes of action or issues which the Court is actually asked to decide or has already decided. It covers also causes of action or issues or facts which, though not already decided as a result of the same not being brought forward due to negligence, inadvertence or deliberately, are so clearly part of the subject matter of the litigation and so clearly could have been raised, that it would be an abuse of the process of the Court to allow a new proceeding. [76] I find no particularly exceptional grounds for this Court to respond to Question 5 in favour of the plaintiffs. Consequently, Question 5 is answered in the negative. This Court will not proceed to address Question 6. Question 8: Whether the pleadings in paragraphs 55 to 84 of the Statement of Claim are scandalous and/or in contempt of court when raised before this Honourable Court and not in an appeal before a superior court? S/N cZ7ulgNPqUiTt8agc9ryqA [77] Having read the 1st defendant's submission in paragraphs 102-103 of Enclosure 75, I agree that paragraphs 55 to 84 of the Statement of Claim are scandalous. [78] Since the plaintiffs filed no appeal against the Judgment in Suit 694, it is undoubtedly true that the plaintiffs were found to have committed fraud against JWD in the Suit 694 Judgment. [79] I refer to the decision of the High Court in the case of Professor Emeritus Dr Azman Awang & Anor v FSBM C Tech Sdn Bhd & Anor [2021] CLJU 36, as follows – [26] In the case of Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang[4] the appellant had been granted a timber concession in Pahang. It claimed to have been prevented from extracting timber from the whole of its concession area. It sued and obtained judgment after trial against the state government of Pahang and the director of the Pahang forestry department based on the evidence of a plan of the concession area. After appeals against this decision was exhausted, the Pahang state and the state forestry director commenced a fresh action to impeach the earlier judgment. They relied on fresh evidence that had not been previously available to them at the time of the earlier suit, due to the fact that this evidence had been in the possession of the Anti-Corruption Agency. The appellants applied to strike out the new action, relying upon res judicata and Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd[5]. Both the High Court and the Court of Appeal dismissed the striking out. The Federal Court affirmed these decisions, holding (among others) that Section 44 of the Evidence Act 1950 provides for an exception to the operation of the principle of res judicata, where the earlier judgment or order of court was delivered without or in excess of jurisdiction or was obtained by fraud or collusion. … [27] Section 44 of the Evidence Act 1950 provides as follows: Fraud or collusion in obtaining judgment or incompetency of court may be proved S/N cZ7ulgNPqUiTt8agc9ryqA

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion. [28] On the construction of section 44, the Federal Court stated as follows: [39] Our view is that the fraud of which s. 44 of the Act speaks refers to an actual fraud and not constructive fraud ie, fraud practised by the other side must have prevented the respondents from placing their case before the court. [40] The fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance (see Patch v. Ward). [80] However, I cannot agree with the defendant’s counsel regarding the assertion that the plaintiffs are in contempt of court. This court cannot find the plaintiffs liable for contempt as per Enclosure 45. [81] In the Federal Court case of Tan Sri Dato' (Dr) Rozali Ismail & Ors v. Lim Pang Cheong @ George Lim & Ors [2012] 2 CLJ 849; [2012] 3 MLJ 458, it was held that - [26] Contempt has been reclassified either as (1) a specific conduct of contempt for breach of a particular court order; or (2) a more general conduct for interfering with the due administration or the course of justice..." [29] It is settled law that committal proceeding is criminal in nature since it involves the liberty of the alleged contemnor. Premised upon that, the law has provided procedural safeguards in committal proceeding which requires strict compliance..." Question 9: Whether there is an abuse of process of the court by the Plaintiffs that would entitle the 1st Defendant to the reliefs under its counterclaim against the Plaintiffs? S/N cZ7ulgNPqUiTt8agc9ryqA [82] This question relates to the 1st defendant’s counterclaim. In support of its counterclaim that the Plaintiffs are vexatious litigants who have abused the process of the Courts by filing unmeritorious applications, appeals and suits, the 1st defendant refers to the history of the Plaintiffs’ litigation with JWD as set out below –

Under the Original Suit (Suit 694), the plaintiff filed: a) An application to strike out the Original Suit; b) An application to stay proceedings in the Original Suit; c) An application for security of costs; d) An application to exclude JWD's additional evidence; all of which were lost by the Plaintiffs save and except for the application to exclude JWD's additional evidence which was set aside on appeal; e) An application to stay execution of the Judgment and then discontinued it after JWD had filed an affidavit in reply; f) An application to stay the assessment of damages and then discontinued it; g) Another application to stay assessment of damages.

(ii) Appeals

The Plaintiffs appealed against the dismissal of their application to strike out the Original Suit but their appeal was dismissed by the Court of Appeal.

Upon delivery of the Judgment, the Plaintiffs together with the other Defendants in the Original Suit appealed against the Judgment but then subsequently discontinued the Appeal. S/N cZ7ulgNPqUiTt8agc9ryqA

(iii) Filed this Suit and under this Suit, the plaintiff filed: a) An application for an injunction to stay execution of the Judgment in the Original Suit which was heard and dismissed by this Honourable Court. b) An application to stay assessment of damages in the Original Suit, which was then struck out by this Court. c) An application to strike out JWD's Counterclaim which was also struck out by this Honourable Court. [83] The 1st defendant further submits that LKK and Wahab, whom the Learned HC Judge found in the Original Suit to have committed fraud together with the Plaintiffs, then filed a new suit in the Kuala Lumpur High Court registered under Civil Suit No.: WA-22NCvC- 478-07/2024 (KLHC Suit 2) against, inter alia, JWD. However, this time, they added JWD's directors, shareholders, and solicitors, Messrs Munhoe, as defendants. [84] According to the 1st defendant, the Suit 694, this Suit and the KLHC Suit 2 are all based on the same facts wherein the Defendants in the Original Suit, including the Plaintiffs of the Suit herein, kept relitigating the same issues. [85] I refer to the Court of Appeal decision in Pembangunan Tanah dan Perumahan Sdn Bhd v Raja Qahaarruddin bin Raja Abdul Aziza- [2020] 2 MLJ 462 that –

There must be an end to all litigation involving the same issue either because the affected party had not exercised its right of appeal or that it has exhausted all revenues of setting aside the impugned judgment or subsequent consent order. It becomes an S/N cZ7ulgNPqUiTt8agc9ryqA abuse of the court's process in the face of repeated resurrecting of the same matter that had been finally concluded with no appeal from PTDP. ... [36] ...The impeachment proceedings must not be a reinstated opportunity long gone and lost for re-litigating the issue that had arisen and already been disposed of. [86] Having considered the entirety of this case and the repeated applications filed by the plaintiffs, I concur with the 1st defendant that the plaintiffs have a pattern of abusing the court process by consistently filing and then withdrawing their applications and appeals. Furthermore, the plaintiffs have frequently filed suits or applications concerning the same issue or for the same purpose. [87] Considering all the circumstances of this case, this Court answers Question 9 in the affirmative. G. CONCLUSION [88] According to Order 33 Rule 5 of the ROC 2012, this Court may dismiss the cause or matter, make such order, or give such judgment therein as may be just. [89] It is my considered view that the plaintiffs could have appealed the Suit 694 Judgment instead of filing the impeachment action in this Suit. [90] The Plaintiffs' action is liable to be struck out pursuant to Order 33 rule 5 ROC 2012 and also Order 18 rule 19(1)(b) and (d) ROC 2012 S/N cZ7ulgNPqUiTt8agc9ryqA as the Plaintiffs’ action is frivolous, vexatious, and an abuse of the process of the Court. DECISION [91] For the aforementioned reasons, this Court has rendered the following decision – i. Writ Saman dan Pernyataan Tuntutan Terpinda bertarikh 26.4.2024 dibatalkan; ii. Tuntutan balas defendan pertama untuk relif berikut dibenarkan –

Deklarasi bahawa plaintif-plaintif dalam memfailkan dan memulakan Guaman Sivil di Mahkamah Tinggi Shah Alam dan permohonan-permohonan interlokutori di sini adalah untuk tujuan collateral dan terjumlah kepada penyalahgunaan proses Mahkamah.

Berikutan dari perintah perenggan (a), selaras dengan perenggan 17 Jadual Pertama dan

Suatu deklarasi bahawa plaintif-plaintif adalah litigan yang menyusahkan; S/N cZ7ulgNPqUiTt8agc9ryqA

(ii) Plaintif-plaintif dilarang daripada memulakan sebarang prosiding undang-undang terhadap defendan pertama kecuali setelah mendapat kebenaran daripada seorang Hakim Mahkamah Tinggi Malaya;

(iii) Ganti rugi am bagi penyalahgunaan proses Mahkamah untuk ditaksirkan dan dibayar oleh plaintif-plaintif kepada defendan pertama atas dasar liabiliti bersesama dan berasingan;

(iv) Ganti rugi teladan adalah untuk ditaksirkan;

Kos dibenarkan atas dasar indemniti dan hendaklah ditafsirkan. Dated: 29 April 2025. Signed ............................................................... HAZIZAH BINTI KASSIM

For the Plaintiffs : Syed Muhd Isa @ Ismat bin Syed Muhamad & Chang Chui May Messrs K K Lim (Federal Territory of Kuala Lumpur)

For the 1st Defendant : Jason Lai Joongkeat & Tan Tong Fang Messrs Munhoe (Federal Territory of Kuala Lumpur) S/N cZ7ulgNPqUiTt8agc9ryqA