Baharudin Bin Abdul Latip v Prudential Assurance Malaysia Berhad (MA-22NCC-9-05/2024)

(a) whether the dismissal of the earlier striking-out application under Order 18 rule 19 precludes the Defendants from raising res judicata or issue estoppel in the present applications;

(b) whether the proposed question is suitable for determination as a preliminary issue under Order 33 rule 2;

(c) whether the Plaintiff's present claim is barred by res judicata issue estoppel, or the wider rule in Henderson v Henderson;

(d) if the answer to issue (c) is in the affirmative, what order should be made under Order 33 rule 5. D. STATUTORY AND LEGAL FRAMEWORK [19] Order 33 rule 2 of the Rules of Court 2012 empowers the Court to order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, to be tried before, at or after the trial of the cause or matter. [20] Order 33 rule 5 provides that where the determination of such question or issue substantially disposes of the cause or matter or renders trial unnecessary, the Court may dismiss the cause or matter or make such other order or give such judgment as may be just. [21] The governing principles on Order 33 were stated in Petroleum Nasional Berhad v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 (Court of Appeal). The Court must be satisfied that the preliminary determination will result in real saving of time and expense, that the question is capable of being decided on the available record, and that the procedure will not become a treacherous shortcut where disputed facts require trial. [22] The same caution appears in Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (Supreme Court). Order 33 is not to be used where the proposed question is entangled with disputed facts or where the pleadings require evidence before the real controversy can properly be resolved. [23] The doctrine of res judicata was authoritatively explained in Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (Federal Court). The doctrine includes cause of action estoppel, issue estoppel, and the wider principle that a party may not raise in later proceedings matters which should have been brought forward in earlier proceedings. [24] The wider principle derives from Henderson v Henderson (1843) 3 Hare 100 (English Court of Chancery). It has been accepted in Malaysian law and reaffirmed in Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 (Federal Court). [25] The relationship between striking out and fuller determination of a point of law is governed by Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (Supreme Court). A striking-out application under Order 18 rule 19 is concerned with whether a claim is plainly and obviously unsustainable. Where a legal point requires fuller consideration, Order 33 may be the appropriate route. [26] The doctrine of res judicata is not mechanical. In Tanalachimy a/p Thoraisamy v Jayapalasingam a/l Kandiah & Ors [2014] 4 MLJ 85, the Court of Appeal recognised that the doctrine is founded on public policy and justice. A court may decline to apply it where rigid application would produce injustice. That qualification, however, must itself be applied with discipline. Finality is also a component of justice. E. ANALYSIS AND DETERMINATION First Issue: Whether the Earlier Order 18 Rule 19 Decision Precludes the Present Applications [27] The Plaintiff contends that the Defendants are precluded from raising res judicata in the present applications because the issue was previously raised and rejected in the earlier striking-out application under Order 18 rule 19. [28] The Notes of Proceedings from the earlier striking-out application record that the Court stated that the blacklisting issue was not within the purview of Suit 391 and that res judicata would therefore not apply. [29] The issue is whether that earlier interlocutory determination gives rise to issue estoppel against the Defendants in the present proceedings. [30] In my judgment, it does not. [31] The critical distinction lies between the procedural function of Order 18 rule 19 and the adjudicative function of Order 33. [32] A striking-out application under Order 18 rule 19 is directed to whether a claim is plainly and obviously unsustainable. The Court does not ordinarily undertake a definitive adjudication of disputed legal or factual questions unless the point is clear beyond serious argument. [33] That principle was authoritatively stated by the Supreme Court in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, where Mohamed Dzaiddin SCJ explained that where a point of law requires serious argument, the matter should ordinarily proceed under Order 33 rather than be summarily disposed of under Order 18 rule 19. [34] The same distinction appears in Tanalachimy a/p Thoraisamy v Jayapalasingam a/l Kandiah & Ors [2014] 4 MLJ 85 (Court of Appeal). The Court of Appeal emphasised that the concern in striking-out proceedings is whether the action is obviously unsustainable, not whether the substantive merits have been finally determined. [35] The Plaintiff relies on Tan Saw Eng & Ors v Ong Lee Hwa & Ors [2023] MLJU 967 (High Court). Properly understood, however, that authority does not support the Plaintiff's position. The High Court there recognised that the dismissal of an earlier striking-out application did not prevent a later Order 33 application because the two procedures engage different procedural thresholds and purposes. [36] The earlier Order 18 rule 19 decision in the present case did not finally determine the substantive applicability of res judicata after full legal consideration on a complete appellate record. It merely determined that the Plaintiff's claim was not so plainly unsustainable as to justify summary disposal at that interlocutory stage. [37] Two further considerations reinforce that conclusion. [38] First, the procedural landscape materially changed after the earlier striking-out decision. At the time the Order 18 rule 19 application was dismissed, the Plaintiff's appeal in Suit 391 remained pending before the Court of Appeal. The Court of Appeal subsequently dismissed the Plaintiff's appeal in its entirety on 10 December 2025. [39] Secondly, the Memorandum of Appeal in Suit 391 expressly raised the alleged Category 1 listing as a ground of complaint. The appellate dismissal therefore bears directly on whether the Plaintiff may now contend that the blacklisting issue escaped final adjudication. [40] Issue estoppel requires a final determination of the relevant issue. Tanalachimy makes this clear. The Court of Appeal stated that issue estoppel requires identification of issues finally determined by the earlier court. [41] The earlier Order 18 rule 19 ruling cannot properly be characterised as a final adjudication binding the Court indefinitely regardless of subsequent appellate developments and regardless of the different procedural posture under Order 33. [42] The Defendants are therefore not precluded from bringing the present applications. [43] The first issue is answered in the negative. Second Issue: Whether the Proposed Question Is Suitable for Determination Under Order 33 [44] The next issue is whether the proposed question is suitable for determination as a preliminary issue under Order 33. [45] The governing principles are settled. [46] Petroleum Nasional Berhad v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 (Court of Appeal) emphasises four central considerations:

(a) whether determination of the issue would substantially dispose of the action;

(b) whether substantial saving of time and expense would result;

(c) whether the issue is sufficiently defined and capable of precise determination;

(d) whether the issue can be determined without impermissible intrusion into disputed factual matters. [47] Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (Supreme Court) likewise warns against using Order 33 where the issues are entangled with extensive factual disputes requiring extrinsic evidence. [48] The Plaintiff contends that the present dispute involves serious allegations concerning fraud, blacklisting, and reputational damage which require full trial and oral evidence. The Plaintiff further contends that the present applications constitute a "treacherous shortcut" inconsistent with the caution expressed in Petroleum Nasional and Newacres. [49] That contention cannot be accepted. [50] The present applications do not require the Court to determine whether the Plaintiff committed fraud, whether the Category 1 listing was justified, or whether the Plaintiff suffered reputational damage. [51] Those are merits issues. [52] The present applications raise a narrower and anterior question: whether the Plaintiff is procedurally barred from litigating those matters because of the prior proceedings and their disposal. [53] The determination of that question depends entirely on documentary materials whose authenticity is not disputed. Those materials include:

(a) the pleadings in Suit 391;

(b) the pleadings in the present action;

(c) the Consent Order dated 6 April 2023;

(d) the grounds of judgment in Suit 391;

(e) the Plaintiff's Memorandum of Appeal;

(f) the Court of Appeal order dated 10 December 2025;

(g) the Notes of Proceedings from the earlier Order 18 rule 19 application. [54] No viva voce evidence is required to determine whether the same parties litigated the same factual matrix, whether the relevant issues were pleaded, whether the action was dismissed, and whether the Plaintiff appealed on grounds including the alleged blacklisting. [55] The Plaintiff repeatedly argues that the blacklisting issue was "outside the scope" of the agreed preliminary issues in Suit 391. [56] But that contention itself demonstrates why the issue is suitable for Order 33 determination. The question is one of legal effect arising from agreed procedural documents and final judicial orders. It is not a question dependent upon witness credibility or disputed primary facts. [57] If the Defendants are correct, the entire action is barred and trial becomes unnecessary. That would plainly satisfy the substantial saving requirement identified in Petroleum Nasional. [58] Conversely, if the Plaintiff is correct, the matter proceeds to trial without prejudice to the merits. [59] The issue is therefore precisely the kind of threshold question contemplated by Order 33. [60] The second issue is answered in the affirmative. Third Issue: Whether the Plaintiff's Claim Is Barred by Res Judicata or Issue Estoppel [61] The central issue is whether the Plaintiff's present claim is barred by res judicata, issue estoppel, or the wider Henderson principle arising from the earlier proceedings in Suit 391 and the subsequent appellate dismissal. [62] The analysis must begin with identification of the juridical foundation of the doctrine. [63] Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (Supreme Court) establishes that estoppel per rem judicata encompasses both cause of action estoppel and issue estoppel. The doctrine also extends to matters which properly belonged to the subject of earlier litigation and which parties, exercising reasonable diligence, ought to have brought forward in those proceedings. [64] Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180 (Federal Court) reaffirmed the wider Henderson principle and adopted the formulation in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160 (United Kingdom Supreme Court). The Federal Court recognised that the doctrine includes not merely issues actually decided, but also matters which should have been raised in earlier proceedings. [65] The present case satisfies the classical elements of res judicata. [66] First, there is identity of parties. [67] The Plaintiff in both proceedings is the same individual. The Defendants in both proceedings are the same insurance and takaful entities. [68] Secondly, there is identity of subject matter and factual foundation. [69] The Plaintiff's present Statement of Claim substantially reproduces the same factual narrative pleaded in Suit 391. Both actions arise from:

(a) the Plaintiff's former agency relationships;

(b) the termination notices dated 17 May 2018;

(c) the alleged consequences of those terminations;

(d) the alleged placement of the Plaintiff's name under Category 1. [70] The Plaintiff does not genuinely dispute that overlap. [71] Instead, the Plaintiff attempts to isolate the alleged blacklisting or referral issue and characterise it as a distinct consequential wrong independent of the termination dispute itself. [72] The difficulty with that approach is that the alleged blacklisting was not absent from Suit 391. [73] It was expressly pleaded. [74] Paragraph 18 of the Statement of Claim in Suit 391 pleaded that the Plaintiff had been listed or blacklisted with LIAM, MTA and BNM under Category 1. [75] The Plaintiff also sought substantive relief in relation to that allegation through prayers requiring the Defendants to clear his name from those associations. [76] The Plaintiff therefore cannot credibly maintain that the alleged blacklisting was external to the subject matter of Suit 391. [77] Thirdly, there was a final judgment of a court of competent jurisdiction. [78] On 6 October 2023, the High Court in Suit 391 dismissed the Plaintiff's action under Order 33 rule 5 after determining the agreed preliminary issues in favour of the Defendants. [79] The Plaintiff appealed. [80] The Court of Appeal dismissed the appeal in its entirety on 10 December 2025. [81] No further appeal was pursued. [82] The Plaintiff nevertheless argues that the blacklisting issue escaped final determination because the agreed preliminary questions concerned contractual termination and notice validity only. [83] That argument cannot be accepted. [84] It conflates two distinct matters:

(a) the scope of the questions selected for separate determination; and

(b) the legal effect of the final order subsequently entered. [85] The agreed preliminary questions identified the route by which the Court would approach the dispute. They did not confine the juridical effect of the eventual dismissal order once the Court exercised its powers under Order 33 rule 5. [86] This distinction is critical. [87] Paragraph 4 of the Consent Order expressly contemplated that if the preliminary issues were answered in the Defendants' favour, the Court would decide whether the Plaintiff's action should be dismissed or proceed to trial. [88] The Court thereafter dismissed the action. [89] The dismissal was not limited to isolated contractual questions. The order dismissed the cause itself pursuant to Order 33 rule 5. [90] Order 33 rule 5 expressly empowers the Court, where determination of the preliminary issue substantially disposes of the cause or matter, to dismiss "the cause or matter". [91] The language of the Rule is significant. [92] It does not provide merely for disposal of the isolated issue. It authorises dismissal of the action itself once the preliminary determination renders trial unnecessary. [93] The learned Judge in Suit 391 expressly held that determination of the preliminary issues substantially disposed of the cause or matter. [94] That conclusion was thereafter affirmed on appeal. [95] The Plaintiff repeatedly relies on paragraph [60] of the earlier grounds of judgment where the learned Judge stated that the blacklisting allegations fell outside the agreed preliminary issues and would become relevant if the preliminary issues were answered against the Defendants. [96] Properly read, however, paragraph [60] does not preserve the blacklisting issue indefinitely from the consequences of dismissal. [97] The paragraph instead reflects the learned Judge's procedural reasoning that the consequential allegations would only require ventilation if the Plaintiff first succeeded on the gateway termination issues. [98] Once the gateway issues were answered against the Plaintiff and the entire action dismissed under Order 33 rule 5, the consequential allegations ceased to survive independently within the same cause. [99] The Plaintiff's own conduct on appeal further undermines the present position. [100] The Memorandum of Appeal expressly complained that the learned Judge failed to consider the Plaintiff's alleged blacklisting under Category 1 and the Plaintiff's inability to continue working within the insurance industry. [101] The Plaintiff therefore placed the alleged blacklisting squarely before the appellate court. [102] The Court of Appeal nevertheless dismissed the appeal in its entirety. [103] The Plaintiff cannot now contend that the issue escaped appellate consideration altogether. [104] The present proceedings therefore amount, in substance, to an attempt to relitigate the consequences of the same termination and the same alleged listing already pleaded and pursued through the appellate process. [105] Even if one assumes in the Plaintiff's favour that the blacklisting issue was not expressly adjudicated on its substantive merits, the wider Henderson principle would still apply. [106] The Plaintiff had every opportunity in Suit 391 to insist that the alleged blacklisting be separately tried or preserved. [107] Instead, the Plaintiff agreed to a procedural structure under which the termination questions operated as gateway issues capable of disposing of the action entirely. [108] The Plaintiff cannot now avoid the consequences of that procedural election by commencing fresh proceedings founded on the same factual matrix merely because the earlier litigation concluded adversely. [109] Perspective Management Services Sdn Bhd v Seganom Sdn Bhd [2004] 4 CLJ 466 (Court of Appeal) is instructive in this regard. The Court of Appeal held that matters not reserved in a compromise or consent arrangement may be treated as abandoned once the earlier proceedings are concluded. [110] Here, the Consent Order did not reserve the alleged blacklisting issue from the consequences of dismissal if the gateway issues were decided against the Plaintiff. [111] The Plaintiff further argues that rigid application of res judicata would produce injustice because the alleged Category 1 listing has continued to affect his livelihood and professional reputation. [112] The Court accepts that res judicata is founded on justice as well as public policy. Tanalachimy and Chee Pok Choy v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346 (Court of Appeal) recognise that the doctrine is not wholly inflexible. [113] But the present case does not disclose the type of exceptional circumstance warranting displacement of finality principles. [114] The alleged injustice identified by the Plaintiff is the very grievance already pleaded in Suit 391 and thereafter raised before the Court of Appeal. [115] The Plaintiff is not seeking to litigate a newly emergent wrong disconnected from the earlier proceedings. [116] What is sought is a further opportunity to litigate the same alleged consequences arising from the same termination and same Category 1 listing. [117] Finality itself is a component of justice. [118] A Defendant who has successfully defended proceedings to final judgment, and successfully resisted an appeal, is entitled in ordinary circumstances to protection from repetitive litigation founded on the same factual controversy. [119] The doctrine exists precisely to prevent repeated attempts to reopen disputes which have already passed through the judicial process to finality. [120] The present proceedings therefore fall squarely within both classical res judicata principles and the wider Henderson doctrine. [121] The Plaintiff additionally argues that the present action is distinct because it concerns wrongful referral or reporting to LIAM and MTA rather than contractual termination itself. [122] That distinction is unsustainable on the pleadings. [123] The alleged referral or blacklisting is pleaded as a consequence arising from the termination dispute and the Defendants' conduct in relation to the Plaintiff's agency relationships. [124] The present action does not arise from some later independent event detached from Suit 391. [125] The same alleged Category 1 listing formed part of the factual matrix pleaded in Suit 391, formed part of the reliefs sought there, and formed part of the Plaintiff's appellate complaints thereafter. [126] The Plaintiff further contends that the alleged blacklisting issue is not contractual in nature and therefore falls outside the earlier proceedings. [127] That submission misunderstands the operation of res judicata. [128] The doctrine is not confined merely to identical legal labels or formal causes of action. [129] Asia Commercial Finance makes clear that the Court must examine the substance of the controversy and whether the later proceedings seek to reopen matters arising from the same subject of litigation. [130] The present proceedings plainly do so. [131] The Plaintiff also relies heavily on the proposition that the earlier Order 18 rule 19 decision amounted to a binding legal finding that res judicata was inapplicable. [132] For reasons already explained earlier in this judgment, that contention cannot be accepted. [133] The earlier interlocutory ruling did not finally determine the substantive applicability of res judicata following full appellate disposal of Suit 391. [134] The Plaintiff's reliance on Cempaka Desire Fly Sdn Bhd v Suryanie Inti Ahmad [2024] CLJU 1002 (High Court) does not assist the Plaintiff either. [135] Properly understood, Cempaka reiterates orthodox res judicata principles. The High Court there recognised that where a later claim seeks to reopen matters already adjudicated between the same parties, striking out may properly follow because the proceedings constitute an abuse of process. [136] Indeed, the authorities relied upon by the Defendants and the Plaintiff alike ultimately converge on the same central proposition: the Court must examine whether the later proceedings are, in substance, an attempt to relitigate matters arising from an earlier dispute already brought to finality. [137] In the present case, they plainly are. [138] The Plaintiff's reliance on Petroleum Nasional Berhad v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 (Court of Appeal) likewise does not alter the analysis. [139] Petroleum Nasional concerned the suitability of Order 33 determination in a complex constitutional and contractual dispute involving extensive factual and interpretive issues. [140] The Court of Appeal stressed that Order 33 should not be used where disputed facts and complex evidential questions require full trial. [141] The present case is materially different. [142] The applications before this Court do not require determination of disputed factual allegations concerning fraud, misconduct, or reputational harm. [143] The issue is whether the Plaintiff is procedurally barred from reopening a dispute already litigated to finality. [144] That question is capable of determination entirely from undisputed procedural documents and prior judicial orders. [145] The Plaintiff further invokes broad equitable considerations and legal maxims concerning justice and judicial discretion. [146] Judicial discretion, however, does not operate in isolation from established doctrine. [147] The Court's obligation is not merely to consider the hardship asserted by one party in abstraction. The Court must also consider finality, consistency, abuse prevention, and the integrity of the judicial process itself. [148] The Plaintiff had a full opportunity to litigate the consequences of the termination and alleged listing in Suit 391. [149] The Plaintiff thereafter exercised a right of appeal and specifically complained before the appellate court about the alleged Category 1 listing. [150] The appellate process concluded against the Plaintiff. [151] The present proceedings therefore constitute an impermissible attempt to reopen substantially the same controversy under altered framing. [152] The doctrine of res judicata exists to prevent precisely such fragmentation and repetition of litigation. [153] Accordingly, the Court finds that:

(a) the parties in both proceedings are identical;

(b) the factual matrix is substantially identical;

(c) the alleged Category 1 listing formed part of the pleaded subject matter in Suit 391;

(d) the earlier action was dismissed under Order 33 rule 5;

(e) the Plaintiff appealed and specifically raised the alleged blacklisting issue before the Court of Appeal;

(f) the appeal was dismissed in its entirety;

(g) the Plaintiff is now attempting to relitigate matters which were, or which ought properly to have been, pursued to finality in the earlier proceedings. [154] The requirements of cause of action estoppel, issue estoppel, and the wider Henderson principle are therefore satisfied. [155] The third issue is answered in the affirmative. F. CONCLUSION [156] The Defendants are not precluded by the earlier Order 18 rule 19 ruling from raising the present applications under Order 33. [157] The proposed question is suitable for determination as a preliminary issue because it turns on undisputed procedural documents, prior judicial determinations, and the legal effect of those proceedings. [158] The Plaintiff's present action arises from substantially the same factual matrix litigated in Suit 391. [159] The alleged Category 1 listing was pleaded in the earlier proceedings, reliefs were sought in respect of it, and the Plaintiff thereafter raised the matter before the Court of Appeal. [160] The earlier action was dismissed under Order 33 rule 5 and the Plaintiff's appeal was subsequently dismissed in its entirety. [161] The present proceedings therefore constitute an attempt to relitigate matters already brought to finality, alternatively matters which ought properly to have been pursued conclusively in the earlier proceedings. [162] The Plaintiff's claim against both Defendants is barred by res judicata issue estoppel, and the wider Henderson principle. G. ORDERS OF THE COURT [163] The Court therefore makes the following orders:

(a) Enclosure 64 filed by the 1st Defendant is allowed.

(b) Enclosure 62 filed by the 2nd Defendant is allowed.

(c) The preliminary question proposed by the 1st Defendant and the 2nd Defendant, namely whether the Plaintiff's claim is barred by res judicata and/or issue estoppel, is answered in the affirmative.

(d) Pursuant to Order 33 rule 5 of the Rules of Court 2012, the Plaintiff's action against the 1st Defendant and the 2nd Defendant is dismissed in its entirety.

(e) The Plaintiff shall pay costs of RM15,000.00 to the 1st Defendant and RM15,000.00 to the 2nd Defendant, respectively, subject to allocator.

(f) There shall be liberty to apply. Dated 21 May 2026 (MELAKA) Lawyer For Plaintiff : Encik Mohd Zulfiqri bin Zakaria Tetuan Zulfiqri Zakaria & Co. Peguambela dan Peguamcara No. 70 & 70-1, Jalan TU 42, Taman Tasik Utama, 75450 Ayer Keroh, Melaka. Lawyer For Defendants : En. Wong Hok Mun Bersama Cik Leong Ling Ee (b/p Defendan 1) Tetuan Wong Hok Mun Peguambela dan Peguamcara D3-5-5, Blok D3, Solaris Dutamas, No. 1, Jalan Dutamas 1, 50480 Kuala Lumpur. Cik Tan Sixin bersama Cik Wong Hui Yi (b/p Defendan 2) Tetuan Azim, Tunku Farik & Wong Unit 5-03, 5th Floor, Wisma Badan Peguam Malaysia, No. 2, Lebuh Pasar Besar, 50050 Kuala Lumpur.