Cempaka Desirefly Fly Sdn Bhd v Suryanie Binti Ahmad (WA-12ANCvC-125-08/2023)

DAN SURYANIE BINTI AHMAD (No. K/P: 791013-11-5186) (pemilik kongsi yang berniaga di bawah Nama dan gaya KRDC Management [No. Pendaftaran: 201803089749 (002801270-T])

SAMSUDIN BIN MOHAMAD FAUZI (No. K/P: 760106-01-7567) (pemilik kongsi yang berniaga di bawah Nama dan gaya KRDC Management [No. Pendaftaran: 201803089749 (002801270-T]) …RESPONDEN-RESPONDEN [Dalam Mahkamah Sesyen Di Kuala Lumpur Di Wilayah Persekutuan, Malaysia Guaman No: WA-B52NCVC-33-01/2023 ANTARA Cempaka Desire Fly Sdn Bhd ...Plaintif (No. Syarikat: 1255807-M) Dan 1. Suryanie Binti Ahmad (No. K/P: 791013-11-5186) 16/05/2024 15:07:48 WA-12ANCvC-125-08/2023 Kand. 22 (pemilik kongsi yang berniaga di bawah Nama dan gaya KRDC Management [No. Pendaftaran:201803089749(002801270-T)])

Samsudin Bin Mohamad Fauzi (No. K/P: 760106-01-7567) (pemilik kongsi yang berniaga di bawah Nama dan gaya KRDC Management [No. Pendaftaran:201803089749(002801270-T)]) …Defendan-Defendan GROUNDS OF JUDGEMENT INTRODUCTION [1] This is an appeal against the decision of the learned Sessions Court Judge (SCJ) for allowing the Respondents’ application to strike out the Appellant’s Statement of Claim (SOC) under Order 18 Rule 19(1)(a), (b),

and (d) of the Rules of Court 2012 (ROC). [2] For ease of reference, the respective parties shall be referred to as the Plaintiff and Defendants as they were in the Sessions Court. BRIEF FACTS [3] There was a civil suit no. BA-B52NCvC-159-07/2020 (Suit 159- 07/2020), which was filed by KRDC Management, against the Plaintiff for breach of a rental tenancy agreement dated 15.1.2020 (Rental Tenancy Agreement). [4] Suit 159-07/2020 was disposed of by way of a full trial. The learned SCJ in Suit 159-07/2020 gave her decision on 27 May 2022, that the Rental Tenancy Agreement was mutually terminated by both parties in mid-July 2020 and awarded that the July 2020 rental of RM110, 416.00 be paid on a pro-rated basis as at 15 July 2020, RM 54,450.00 as loss of facility resort, electricity bill amounting to RM19,505.55, and interest of 5% only on the claims allowed by the Court, including cost of RM10,000.00, to be paid by the Defendant (the Plaintiff in this instant Suit) to the Plaintiff in Suit 159-07/2020 (the Defendants in this instant Suit). The claim for loss of income for the month of August 2020 until January 2021 amounting of RM662,496.00 was not allowed in Suit 159-07/2020. [5] Accordingly, the counter claim by the Defendant in Suit 159-07/2020 (Plaintiff in this Suit) was also dismissed. [6] The Plaintiff then filed this Suit against the Defendants, as partners of KRDC Management, to claim the sum of RM331,284.00 being the rental for November, December 2020 and January 2021 duly paid or alternatively RM192,092.45 after deducting RM139,155.55 being the Judgment Sum granted to KRDC Management in Suit 159-07/2020. [7] On 21.7.2023, the learned SCJ of this Suit, dismissed the Plaintiff’s claim on the grounds that it was barred by the doctrine of res judicata and strike out the Plaintiff’s SOC under O18 R19 of ROC. Plaintiff’s Contention [8] The Plaintiff averred that the claim in this suit is derived from the decision and/or grounds of judgment in Suit 159-07/2020. [9] The Plaintiff contended that based on the decision and/or grounds of judgement in Suit 159-07/2020 that the sum of RM331,248.00 being the rental of November, December 2020 and January 2021 in which KRDC Management was not allowed to forfeit as the Rental Tenancy Agreement, ought to be returned to the Plaintiff. [10] The Plaintiff further contended that the matter in this Suit is not the same as the counter claim in Suit 159-07/2020. The counter claim in Suit 159-07/2020 was to seek for a refund of the deposit on the basis that the tenancy was unilaterally terminated by KRDC Management. [11] The Plaintiff also contended that it was wrong, inequitable and/or causing injustice to the Plaintiff as the learned SCJ in Suit 159-07/2020 has decided that the Defendants are not allowed to keep the sum of RM331,248.00. Defendants’ Contention [12] The Defendants contended that this claim is res judicata as all the issues have been heard and dispose of during the full trial of Suit 159- 07/2020 and ought to be strike out under O18 R19 of ROC. FINDINGS AND ANALYSIS Res Judicata [13] In Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 it was held- “(1) 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 contradiction of the correctness of a final judgment by the same parties in a subsequent proceeding. Further, the parties are also prevented from asserting a cause of action or issue which should have been brought forward in the earlier action, but was not, whether deliberately or inadvertently.”. [14] The Defendant in Suit 159-07/2020 (Plaintiff in this instant case) filed a counter claim which was similar to the SOC of this Suit. Subsequently, the counter claim in Suit 159-07/2020 was dismissed by the learned SCJ. [15] For clarity, the similarity of the counter claim in Suit 159-07/2020 and the claim in this Suit are— Suit 159-07/2020 (Counter Claim) This Suit (SOC) a) Plaintiff memulangkan kesemua deposit yang telah dibayar oleh Defendan kepada Plaintif berjumlah RM331,248.00; b) Faedah pada kadar 5% setahun bagi item (a) di atas dan dikira dari tarikh pemfailan tindakan ini sehingga tarikh penyelesaian penuh. *(Plaintiff in Suit 20 is KRDC Management, whilst the Defendant, is the Plaintiff in this Suit)

Defendan-defendan membayar RM331,248.00 kepada Plaintif;

Secara alternatif kepada perenggan (a), Defendan-Defendan membayar RM 192,092.45 kepada

Faedah pada kadar 5% setahun bagi item (a) atau (b) di atas yang dikira dari tarikh pemfailan tindakan ini sehingga tarikh penyelesaian penuh. DECISION OF THE SCJ The Counter Claim is dismissed with cost (upon Full Trial) DECISION OF THE SCJ The SOC is dismissed with cost (upon O18 ROC application) [16] It is obvious that the Plaintiff is seeking to re-litigate or re-open the issues that have been decided by the learned SCJ in Suit 159-07/2020. [17] In Loo Chooi Ting v United Overseas Bank Ltd [2015] 8 CLJ 287 (CA), it was held— [29] Applying the above cited authorities, we agreed with the submission of learned counsel for the defendant that the plaintiff was barred from relitigating the action. We have perused the statement of claims filed in both the High Court of Singapore and the High Court of Malaya and found:

that the parties in the present suit were the same with the parties to the earlier suit;

that the claim presented in the present suit in the High Court of Malaya was identical to the one determined in the earlier suit in the

That there was a final judgment entered against the defendant in the High Court of Singapore. [30] In the circumstances, the High Court of Singapore’s judgment acts as a final prohibition to any other proceedings upon the same cause of action between the plaintiff and the defendant. [18] Accordingly, in Raja Zainal Abidin bin Raja Haji Tachik & 3 Ors v British-American Life & General Insurance Bhd [1993] 3 CLJ 606, the Supreme Court held— “[28] … The lower Court should have also scrutinized the evidence in order to decide whether the action was bound to fail. If so, it would have been found otiose to send the case back to its starting point to start its long and expensive course albeit such a conclusion was reached on an application filed under O 18 r 19.”. [19] Further, in the case of Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180, the Federal Court held that— “[80] The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (1843) 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are:

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

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

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

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

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

there is a general procedural rule against abusive proceedings. It must also be shown that the earlier judgment necessarily and with precision determined the point in issues to constitute res judicata.” [20] Res judicata can also apply where the issues were not raised in the previous claims but might have been and were not. In Twin Pavilion Development Sdn Bhd v Teo Choon Ming & Ors [2023] MLJU 1115, the Court of Appeal held- “[13] From the above, we recognise that the current claim is different from the previous claims. However, res judicata can apply in instances to issues which might have been and which were not brought forward either deliberately or inadvertently. This has been clearly set out in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 1 MLRA 611; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR 2559, which we will do well to refer to. [14] The principle is this and is evident from pp 616, 617 and 619: "What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatam.When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest reipublicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action - nemo debet bis vexari pro una et eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. ..... The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v. Henderson (1843) 3 Hare 100 at p 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. ..... There is one school of thought that issue estoppel applies only to issues actually decided by the Court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the Court, are still covered by the doctrine of res judicata, ie doctrine of estoppel per rem judicatam. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatam. It is particularly important to bear in mind the question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the Courts being found always one step behind the resulting increase in litigation." [21] It comes to this Court’s attention, as submitted by the Defendants’ counsel, that the Plaintiff had in fact, filed an appeal in regards to the Order of Suit 159-07/2020. However, there was a delay in filing the appeal and the Plaintiff filed for an extension of time but was dismissed at the Shah Alam High Court. Thus, making the Order of Suit 159-07/2020 as final. [22] As such, this Court finds that the cause of action raised in this Suit has been litigated and decided in Suit 159-07/2020. In this context alone, it is clear that the Plaintiff is debarred from bringing the same cause of action to be litigated and as such the principle of res judicata applies.

O18R19 of ROC provides- “19. Striking out pleadings and endorsements (O. 18 r. 19)

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

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

it is scandalous, frivolous or vexatious;

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

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.:.”. [23] The principle for striking out of pleadings pursuant to O 18 r 19 of the ROC is well settled (see Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, Sim Kie Choon v. Superintendent of Pudu Prison & Ors [1985] 1 MLRA 167; [1985] 2 MLJ 385; [1985] CLJ (Rep) 293, Middy Industries Sdn Bhd & Ors v. Arensi Marley (M) Sdn Bhd [2013] 3 MLRA 114; [2013] 3 MLJ 511 and Gasing Heights Sdn Bhd v. Aloyah bte Abd Rahman & Ors [1996] 2 MLRH 631; [1996] 3 MLJ 259; [1996] 3 CLJ 695; [1996] 3 AMR 3000). [24] Further, in Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLRA 175; [2013] 5 MLJ 1; [2013] 6 CLJ 673; [2013] 4 AMR 385 (FC), it was held that ‘where the claim on the face of it is obviously unsustainable, the claim should be struck out’. [25] In Twin Pavilion Development (supra), it was deliberated that- "[27] The striking out was premised on 0.18 r.19(1)(b) or (d) RC 2012 which are the grounds of frivolous or vexatious and abuse of the process of the court. We find that as the Respondents' claim is barred by the principles of res judicata it warrants striking out on the aforesaid grounds." [26] As such, this Court finds that this instant Suit was an attempt by the Plaintiff to resuscitate its claim that was dismissed at the Sessions Court and thereafter at the High Court when its application for extension of time to file for the appeal was dismissed on the grounds of delay. CONCLUSION [27] Finally, under O. 55 of ROC, this appeal is by way of a rehearing and this court has assessed and weighed all the evidence and laws placed before this Court in its entirety. In this regard, for all the reasons aforesaid, this Court finds that there is no merit in the Plaintiff’s appeal to warrant appellate intervention (See Ong Leong Chiou v. Keller (M) Sdn Bhd (FC) [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821, Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case [2018] 1 MLRA 263; [2018] 2 MLJ 177; [2018] 2 CLJ 641 (FC), Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors, [2020] 12 MLJ 67; [2020] 6 MLRA 193 and MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665). [28] As such the appeal is dismissed with cost. (YA DR. SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISSIONER OF THE HIGH COURT NCVC 1 Kuala Lumpur Court. Dated: 13 May 2024 COUNSELS FOR THE APPELLANT Messrs BISHAN & PARTNERS A-03-02, Garden Shoppe@OneCity Jalan USJ 25/1F 47650 Subang Jaya Selangor Darul Ehsan FOR THE RESPONDENTS Messrs Abdul, Low & Partners No 70A Jalan Nova U5/N Subang Bestari 40150 Shah Alam, Selangor