Axbuilder Sdn Bhd v Bonafide Design & Construction Sdn Bhd (WA-12ANCvC-154-09/2023)

On 13.5.2024 this Court had dismissed the Appellant’s appeal with the costs of RM7,000. The Session Court’s decision was affirmed. Nearly four months later, the Appellants lodged an appeal (out of time) to the Court of Appeal against this Court’s said decision. The following are this Court’s grounds of judgment. 12/09/2024 16:03:24 WA-12ANCvC-154-09/2023 Kand. 16 S/N UacEmxiO/EKtDroak55c4A **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

The Session Court on 4.9.2023 allowed the Respondent’s application for an order that the Appellant produce documents relied on by it to the court according to Order 24 Rule 14 Rules of Court 2012 (RoC). The Session Court had in another case – WA-A52NCvC-1715-08/2021 (Suit 1715), decided that the said documents requested were essential and necessary for a fair disposal of the Appellant’s claim. This order was accepted by the Appellant as there was no appeal against it.

Thus, this Court agreed with the Respondent that the doctrine of res judicata applied because the same matter had been adjudicated upon. The fact that Suit 1715 was subsequently struck out with liberty to file afresh due to the Appellant’s failure to produce the same, irrespective.

Following that, as per the decision of the Session Court in Suit 1715, the said documents were found to be in the possession, custody, or power of the Appellant. Therefore, the application of the doctrine of stare decisis prohibited the Appellant from re-opening and re-litigating the same issue.

This Court noted that the Appeal Records disclosed the Appellant had on 8 occasions made judicial admissions in Suit 1715 that the said documents existed. The Appellant cannot now in another suit be allowed to take an inconsistent position that the said documents had never existed. The decision in Suit 1715 on the said documents is still valid and effective.

This Court further noted that the said documents were referred to in the Appellant’s Statement of Claim (SoC). As per the Session Court, this Court found that they would be directly relevant to the factual issues that S/N UacEmxiO/EKtDroak55c4A **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 concerned the Respondent’s defence of fraud and forgery, and the Appellant’s quantum meruit claim.

The current suit before the Sessions Court from where this appeal stemmed from WA-A52NCvC-114-02/2023 (Suit 114), is the second suit commenced by the Appellant against the Respondent in respect of the same subject matter on the same grounds for the same reliefs as per Suit

The Appellant’s claim at the Session Court is premised on an alleged settlement reached during a purported meeting of 18.3.2021. A letter of the event was said to be the purported settlement whereby the Respondent was said to have agreed to pay RM298,110 to the Appellant for the services rendered under a purported Construction Management Service Agreement dated 10.12.2019 (the purported agreement). [8] In the alternative, the Appellant mounted a claim for the purported service fee and purported project profit on a quantum meruit basis. To defend against these claims, the Respondent claimed that the purported settlement and the purported agreement were forged and/or fraudulent where all the signatures, company seals, and letterheads were fabricated. [9] The Respondent pleaded that it knew those documents until a letter of demand was received on 15.6.202 from the Appellant’s solicitors. The Respondent pleaded its denial and had also lodged a police report on 6.7.2021 claiming fraud/forgery. [10] The production of documents granted by the Session Court and affirmed by this Court was for the original copies of:

The purported agreement;

The purported settlement;

Invoice(s) purportedly issued by the Appellant to the Respondent for the purported service fee of RM66,000;

Invoice(s), proof of payment and receipt pertaining to the purported petty cash of RM6,000;

Invoice(s) on the purported net profit of RM580,0000;

Invoice(s) proof of payment and receipt pertaining to the materials purportedly purchased by the respondent on behalf of the Appellant in the sum of RM5,890;

Proof of service and the Respondent’s acknowledgment receipt in relation to the letter, invoices, receipt and/or proof of payment referred to in items (a)-(f) above;

Payment records pertaining to the payments allegedly made by the Respondent to he Appellant under the purported agreement;

WhatsApp conversation between the Appellant’s representative Mr David Yew and the Respondent’s representative Mr Tony Ho. [11] All these documents were previously ordered to be produced by the Session Court in Suit 1715. Following the Appellant’s defiance to produce some of the documents (repeated non-compliances during the proceedings), the Appellant filed an application to carve out the unproduced documents from the order to produce citing that they were not in existence at all times. That application to vary was dismissed by the Session Court in Suit 1715 on 23.12.2022 as the Session Court found that they were found to be in existence and the possession of the Appellant as per the Production Order of 1.6.2022. S/N UacEmxiO/EKtDroak55c4A [12] When the Appellant failed to comply with the Unless Order issued by the Session Court on 23.12.2022, the Session Court struck out Suit 1715 with liberty to file afresh, and no order was made on costs. According to the Appeal Records and as confirmed by counsels during the hearing of this appeal, for Suit 1715 orders there were no appeals. Suit 114 was filed three weeks after Suit 1715 was struck out. The reasons for this Court’s decision [13] This Court dismissed the appeal and affirmed the decision of the Session Court. By the production order in Suit 715 on the same documents for the same claims by the Appellants that sought the same reliefs, this issue on the production of documents had already been decided. The Supreme Court’s decision in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189 is instructive and bound this Court. As the Federal Court’s decision in Joseph Paulus Lantip & Ors v Unilever PLC [2012] 7 CLJ 693; [2012] MLJU 1759 at para 707-E and 708-Bof the judgement held: “The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter – whether on a question of fact or a question of law – has been decided between two parties in one suit or proceedings and the decision is final either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies,, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. S/N UacEmxiO/EKtDroak55c4A ~ The parties are bound by the rulings of the court under the principle of res judicata. It is also important to observe that a decision given by a court at one stage in the same or subsequent suit.” [14] This Court also found that the striking out of Suit 1715 with the liberty to file afresh did not preclude the application of the doctrine of res judicata. See Mahathir Mohamad bin Mohd Ali Jinnah & Ors v Jagdish Singh a/l Amir Singh [2022] MLJU 964; [2022] MLRHU 802 and Epacland Sdn Bhd v Kean Seong Co Sdn Bhd [2013] 8 MLJ 124; [2012] MLJU 1227. [15] There was no appeal against the decisions by the Session Court in Suit 1715 which meant they were final and binding. The doctrine of res judicata mirrored the public interest that there must be finality in judicial decisions. Refer to the Federal Court’s decision in Syed Omar bin Syed Mohamed v Perbadanan Nasional Bhd [2013] 1 MLJ 461; [2012] MLJU 1167; [2012] 9 CLJ 557; [2013] 1 AMR 1 that maintained the legal position that in the absence of any appeal, subsequent suits filed to circumvent the decision amounted to an abuse of the court process. [16] This Court had considered the fact that the Appellant had never claimed the unproduced documents were not in existence. The Appellant had stated that the original documents were furnished to the Respondent in its notice where documents may be inspected dated 20.10.2021. The purported settlement of 18.3.2021 stated that the Respondent had been invoiced. The Appellant’s affidavit in reply affirmed on 25.11.2021 in Suit 1715 stated that the original documents were served previously to the Plaintiff. In the Appellant’s written submissions dated 25.5.2022 in Suit 1715 also submitted that “the originals were forwarded to the Defendant S/N UacEmxiO/EKtDroak55c4A prior to this.” The Appellant’s solicitors’ letter to the Court dated 10.6.2022 confirmed the same. In the Appellant’s solicitors’ letter to the Respondent’s solicitors dated 24.6.2022 which was copied to the court stated “these original documents are no longer in the possession and control of the Plaintiff. This is a fact which has already been made known to the Court as well as the Defendant by way of an affirmation on oath made by the Plaintiff in Enclosure 17.” Another letter dated 1.7.2022 from the Appellant’s solicitors to the Respondent’s solicitors dated 1.7.2022 repeated the same. The minutes of the case management on 5.8.2022 in Suit 1715 confirmed that some of the documents were not in the possession of the Appellant as per the said correspondences. [17] Therefore, clearly, there were no issues with the documents being in existence. To then claim that the said documents did not exist was a shift, inconsistent with the stand taken repeatedly before. Whether the Appellant had intended to mislead the Court in Suit 1715 or Suit 114, this Court agreed with the Session Court who had decided to not allow the Appellant to take such an inconsistent position (see Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2017] 5 MLJ 63; [2017] 6 MLRA 334 where the Court of Appeal prohibited the appellant in that case to later change its stance in the appeal and Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915; [2011] MLJU 1408; [2011] 1 LNS 1853 where the Court of Appeal ruled that the respondent in that case was estopped from taking a position different from that pleaded and admitted.) [18] Looking through the documents ordered to be produced, this Court opined were relevant, material, and necessary for the case. They have a direct bearing on the Appellant’s claim as well as the Respondent’s S/N UacEmxiO/EKtDroak55c4A defence. This Court found that the order by the Session Court was properly made under Order 24 Rule 12 and 13 RoC. As accord to the test of necessity laid down by the Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40; [2009] MLJU 530, this Court found:

Those documents, introduced by the Appellant in its SoC would be relied upon to prove its case against the

They are of direct relevance to the facts in issue and form the entire case of the Appellant for the alleged outstanding amount of RM298,110 and also the alternative claim for the purported service fee and the purported project profit on quantum meruit claim. [19] The Respondent denied the existence of the agreement, settlement, and even the alleged meeting, the production of these documents would be necessary in the case for both the Appellant who has to prove them, and the Respondent who challenged its existence and authenticity. The issues of fraud and forgery can only be conclusively determined upon the inspection of the original copies by way of forensic examination. [20] On that note, this Court was of the considered view that to ensure accurate results from the forensic examination, the production of the documents was necessary. They were of necessary to ensure the fair disposal of the suit as their authenticity and legitimacy could indeed adversely affect the Appellant’s claim or reinforce the Respondent’s defence. See Yayasan Tuanku Syed Sirajuddin v Hong Leong Bank Bhd [2021] 10 CLJ 654; [2021] MLJU 1806. S/N UacEmxiO/EKtDroak55c4A [21] As per the finding of the Session Court, this Court too found that the Respondent would be greatly and unfairly prejudiced without the production of the documents. See Aaravalli a/p S Muthiah v Dr Ng Hee Hua & Anor [2017] 8 MLJ 495; [2016] MLRHU 1363 and Jalex Sdn Bhd v City Properties Sdn Bhd & Ors [2020] 5 CLJ 520; [2020] MLJU 329; [2020] 10 MLJ 100. [22] Moreover, this Court had scrutinized the Session Court’s decision and found that her bases the order to produce the said documents were rational and reasonably explained. This Court was in complete agreement and the finding of facts were not to be disturbed; guided by the Federal Court’s decision in Ng Hoo Kui & Anor v Wendy Tan Lee Peng [2020] 12 MLJ 67; [2020] MLJU 1469. DATED 11 SEPTEMBER 2024 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR