Chow Chee Keong v the Republic of the Union of Myanmar (WA-22NCVC-289-05/2018)

The Defendant had, vide Notice of Application dated 26.7.2018 (Enclosure 10), applied to strike out paragraphs 18(iii), (iv) and (v) in the Plaintiff’s Statement of Claim (‘SoC’) dated and filed on 18.5.2018 pursuant to O. 18, r. 19(1)(b), (c) and (d) Rules of Court 2 2012 (‘RoC 2012’) and/ or under the inherent jurisdiction of the Court.

Having heard oral submissions by learned counsels for the Plaintiff and the Defendant and having read the Affidavits and written submissions filed, including additional written submissions pursuant to a clarification session with learned counsels, I had dismissed the Defendant’s application with cost of RM4,000.00 subject to allocatur.

The Defendant has since lodged an appeal against my decision. These are my full grounds in dismissing the Defendant’s application.

The relevant affidavits in respect of Enclosure 10 are as follows:

the Defendant’s Affidavit In Support (‘AIS’) affirmed by His Excellency Sein Oo, the Ambassador to the Myanmar Embassy in Kuala Lumpur on 25.7.2018 (Enclosure 11); 3

the Plaintiff’s Affidavit In Reply (‘AIR’) affirmed on 8.8.2018 (Enclosure 13); and

the Defendant’s AIR affirmed on 23.8.2018 (Enclosure 14). Background facts [5] The dispute between the parties are centered around a property known as Geran No. 4487, Lot No. 224, Seksyen 89, Bandar dan Daerah Kuala Lumpur, Wilayah Persekutuan, Kuala Lumpur, also known as No. 8C, Jalan Ampang Hilir, 55000 Kuala Lumpur (‘said Property’). [6] In order to fully appreciate the long outstanding feud between the parties which goes back more than 10 years, I would need to set out the backdrop to the litigation history in some detail and this has been sourced from the SoC and Chronology of Events enclosed as Appendix A in the Defendant’s Additional Submission. The said Additional Submission was prepared following a clarification session 4 by the Court with learned counsels representing the parties after hearing the initial oral submissions. The Chronology of Events is similar to the one filed in the Record of Appeal at the Court of Appeal in respect of the Defendant’s appeal in Civil Appeal No. W-02(IM)- 2125-10/2017 (‘2125 Appeal’). This chronology was not objected to by the Plaintiff during the hearing of the appeal on 25.4.2018. [7] Ms. Chow Cheok Peng (‘CCP’), the Plaintiff’s sister, who was then the landlord of the said Property, had entered into the initial Tenancy Agreement with the Defendant on 19.7.2007. Subsequently, the tenancy was renewed vide Tenancy Agreements dated 1.8.2009 and 1.8.2011, and a letter of extension dated 1.8.2015 (for the period commencing from 1.8.2015 until 31.10 2015). [8]

the same monthly rental of RM28,000.00 shall apply;

the extended period of tenancy commences from 1.11.2015 until 30.4.2016; and

any sale or disposal of the said Property by CCP during the term of the tenancy or any renewals thereof shall be without vacant possession and shall be subject to the tenancy. 7 [12] Thereafter, CCP entered into a Sale and Purchase Agreement on 5.1.2016 (‘said SPA’) to sell the said Property to the Defendant for the net sum of RM20 million. The Defendant paid a deposit of RM12 million to CCP on 6.1.2016. Then, on 28.1.2016, the purchase price for the said Property was amended to RM19.5 million after CCP failed to obtain the Certificate of Completion and Compliance. The balance purchase price was also amended to RM7.5 million. The completion date of the SPA was scheduled on 4.4.2016 which was the date for payment of the balance purchase price. [13] It is the Plaintiff’s case that the said SPA was executed without the consent and knowledge of the Plaintiff who discovered the same only on 15.2.2016. On that same date, the Plaintiff’s solicitors informed the then solicitors acting for the Defendant regarding, inter alia, the terms of the Orders dated 7.12.2011 and 27.1.2016. [14] By a Notice of Application dated 17.2.2016 (Enclosure 40), the Defendant sought leave to intervene in the on-going proceedings between the Plaintiff and CCP, and to amend and/ or set aside the Order of the Court dated 27.1.2016. The Defendant’s application to 8 intervene was allowed on 7.4.2016. After a full hearing of Enclosure 40, the Defendant’s application was dismissed on 7.10.2016. The Defendant’s appeal to the Court of Appeal was similarly dismissed on 21.6.2017. [15] By an Order dated 8.11.2016, CCP was ordered to sell her remaining ½ share in the said Property to the Plaintiff at the sum of RM5.1 million subject to certain deductions. The deductions took into account the continued rental paid by the Defendant to CCP until October 2016. By the same Order, the Defendant was also ordered to remove the private caveat that it had lodged in respect of the said Property. [16] In view of the Defendant’s failure in complying with the Order to remove its private caveat, the Plaintiff filed an application on 31.3.2017 (Enclosure 75) for an order that in the event the Defendant failed to execute the Withdrawal of Private Caveat Form within 14 days of the date of the Order, the Registrar of the High Court would execute the same on its behalf. 9 [17] The Defendant filed its own application on 7.8.2017 (Enclosure 90) to set aside and/ or vary the Court Order dated 8.11.2016 in relation to the order that the Defendant withdraws the private caveat. [18] The Plaintiff’s application in Enclosure 75 was allowed and the Defendant’s application in Enclosure 90 was dismissed on 5.10.2017. The Defendant was ordered to remove its private caveat lodged in respect of the said Property and to pay arrears of rental amounting to RM140,000.00 from November 2016 to March 2017, and rental at the rate of RM28,000.00 per month for the subsequent months to the Plaintiff. [19] The Defendant appealed against the decision of the High Court dated 5.10.2017 in respect of both Enclosures 75 and 90. However, on 25.4.2018, the Defendant withdrew its appeal as regards Enclosure

Thus, only the Defendant’s appeal in relation to Enclosure 75 was heard and allowed by the Court of Appeal in the 2125 Appeal with costs of RM5,000.00. 10 [20] Pursuant to the Order dated 5.10.2017, the Registrar of the Kuala Lumpur High Court duly signed the Withdrawal of Private Caveat Form. The Plaintiff thereafter paid the redemption sum of RM2,713,516.52 to RHB and became the registered owner of the said Property on 12.1.2018. [21] The Plaintiff had, through his solicitors, demanded that the Defendant pay the arrears of rental then owing in the sum of RM420,000.00, failing which the Defendant was to quit and deliver up vacant possession of the said Property on or before 28.2.2018. The Defendant was put to notice that it would be liable to pay double rental of RM56,000.00 per month from 1.3.2018 if it failed to quit and deliver vacant possession of the said Property. [22] The Defendant has continued to occupy the said Property and thus, according to the Plaintiff’s calculations, the Defendant owes the Plaintiff arrears of rental as follows:

as the beneficial owner of the said Property, at the rate of RM28,000.00 per month from 1.11.2016 until 31.12.2017 amounting to RM392,000.00; 11

as the legal/ registered owner of the said Property, for the months of January 2018 and February 2018 at the rate of RM28,000.00 per month amounting to RM56,000.00; and

double rental at the rate of RM56,000.00 per month from 1.3.2018 to the date of actual delivery of vacant possession. [23] This action was instituted by the Plaintiff for the following reliefs as set out in paragraph 18 of the SoC: “i) A Declaration that the Defendant is liable to quit and deliver vacant possession of the Subject Property to the Plaintiff; ii) An Order that the Defendant and/or servants and/or agents or otherwise do quit and deliver vacant possession of the Subject Property to the Plaintiff with immediate effect or within such period of time as this Honourable Court deems fit and proper; 12 iii) An Order that the Defendant do pay the Plaintiff the rental in arrears from 1st November 2016 to 31st December 2017 at the rate of RM28,000.00 per month amounting to RM392,000.00; and a sum of RM56,000.00 for January 2018 and February 2018; and double rental at the rate of RM56,000.00 per month from 1st March 2018 to the date of actual delivery of vacant possession; iv) Interest at the rate of 5% per annum from date of accrual of rental in respect of item (iii) above to date of realisation; v) An Order for damages to be assessed by the Senior Assistant Registrar and paid forthwith by the Defendant together with interest thereon at 5% per annum from date of the order hereof to the date of realisation; 13 vi) Any further or other relief deemed fit and proper by this Honourable Court; and vii) Costs.”. [emphasis added] [24] In its Defence and Counterclaim dated 20.6.2018, the Defendant has pleaded that the issue of arrears of rental as claimed by the Plaintiff has been decided by the Court of Appeal in the 2125 Appeal on 25.4.2018 and therefore, it is res judicata and/or estopped by the doctrine of issue estoppel. [25] The Plaintiff, in his Reply to the Defendant’s Defence and the Defence to Counterclaim dated 4.7.2018 has stated, inter alia, that the principles of res judicata and/ or estoppel are inapplicable to this case. 14 Submissions for the Defendant [26] Having traced the salient facts in the previous court proceedings between the parties, the Defendant’s submission can now be easily summarised in essence that the Plaintiff’s claims in subparagraphs 18 (iii), (iv) and (v) of the SoC are similar to the claim at paragraph (c) of the Plaintiff’s Notice of Application dated 31.3.2017 in Civil Suit No: S22-835-2007 (Enclosure 75), which has been finally disposed of by the Court of Appeal in the 2125 Appeal since no leave to appeal to the Federal Court was filed by the Plaintiff. [27] Enclosure 75 can be seen in exhibit “SO-1” in the Defendant’s AIS where the prayer in paragraph (c) reads “Defendan Kedua membayar kepada Plaintif wang sebanyak RM140,000.00 yang merupakan tunggakan sewa dari November 2016 sehingga Mac 2017 dan berterusan pada kadar RM28,000.00 sebulan kepada Plaintif;”. [28] The High Court Order dated 5.10.2017 is also included in exhibit “SO- 1” where paragraph (c) in the Order is a mirror image of the prayer sought by the Plaintiff as aforesaid. 15 [29] Since the claim at paragraph (c) of the Plaintiff’s application (Enclosure 75), which has been finally disposed by the Court of Appeal in the 2125 Appeal on 25.4.2018, is similar to the present claims at subparagraphs 18(iii), (iv) and (v) of the SoC, the Defendant argued that the Plaintiff’s current claims are caught by the principle of res judicata and/ or doctrine of issue estoppel. The Defendant relied on the judgment in Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MJ 290 to support its proposition that although the issues raised and the relief sought are not totally similar, yet the substantial duplication of issues and relief sought in Enclosure 75 and those subparagraphs in the SoC amount to multiplicity of actions and ought to be struck out for being vexatious and an abuse of the process of the court. [30] The Defendant additionally relied on the cases of Wawasan Dengkil Properties Sdn Bhd & Ors v Khoo Peng Lai & Ors [2016] 6 MLJ 330; Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122; Goh Keat Poh & Ors v Farlim Properties Sdn Bhd and other appeals [2009] 5 MLJ 449; and Chan Yuow Seng v Ling Ong Hua [1995] 2 MLJ 580 concerning the plea of res judicata and the 16 applicability of issue estoppel to the facts of the case before this Court. Submissions for the Plaintiff [31] The Plaintiff highlighted the ground upon which the Defendant had appealed against the decision of the learned Judicial Commissioner on 5.10.2017 in the Defendant’s Memorandum of Appeal dated 12.12.2017 (see exhibit “CCK-4” in the Plaintiff’s AIR Enclosure 13) namely – “(g) Yang Arif Pesuruhjaya Kehakiman terkhilaf/silap dari segi undang-undang dan fakta apabila Yang Arif gagal untuk pertimbangkan dengan sewajarnya bahawa Mahkamah Tinggi telah “functus officio” berkenaan dengan isu tunggakan sewa yang mana Defendan Pertama bersetuju membayar kepada Plaintif seperti dalam perenggan (b) Perintah bertarikh 23.1.2015, di mana telah diambilkira setakat 31 Oktober 2016 di perenggan (g) dalam Perintah bertarikh 8.11.2016. 17 Justeru itu, Permohonan Plaintif untuk tunggakan sewa dari November 2016 sehingga Mac 2017 berjumlah RM140,000.00 dan berterusan pada kadar RM28,000.00 sebulan merupakan satu tindakan kausa baru terhadap Defendan Kedua yang tidak menjadi pihak dalam Perintah bertarikh 23.1.2015. Juga, Permohonan Plaintif untuk tunggakan sewa tersebut yang dituntut terhadap Defendan Kedua, yang tidak menjadi pihak dalam Perintah bertarikh 23.1.2015 dan perenggan (g) dalam Perintah bertarikh 8.11.2016, merupakan satu tuntutan ke atas pihak yang salah.”. [32] The Defendant’s written submissions in the 2125 Appeal can also be seen in exhibit “CCK-4” where the relevant excerpts on the issue of outstanding rental and continuous payment of rental are as follows: “… v. The Plaintiff’s application for prayer c is a new cause of action against the Second Defendant. This is because 18 the High Court Order dated 8.11.2016 is a “Consequential Order” following from the main High Court dated 27.1.2016, wherein the Second Defendant was not a party in the proceedings at Enclosure 34 and the Plaintiff did not serve any cause papers in respect of Enclosure 34 to the Second Defendant and therefore the Second Defendant is not bound by the Order dated 27.1.2016. … vi. ... Therefore, Plaintiff’s application herein for outstanding rental from November 2016 till March 2017 totalling RM140,000.00 and continuing at the rate of RM28,000.00 a month is new a cause of action against the Second Defendant, who was not a party in the Order dated 23.1.2015. Further, Plaintiff’s application for outstanding rental now being claimed from the Second Defendant, who was not a party in the Order dated 23.1.2015 and at paragraph g of the Order dated 8.11.2016, is a claim against the wrong party and must be dismissed…. 19 vii. From the above factual matrix, the Appellant argues that the Plaintiff cannot “subrogate” the Order so obtained against the First Defendant in respect of the issue of outstanding rental as stated above and apply to this Honourable Court to impose those same obligations contained in the said Order unto the Second Defendant as only parties named in the said Order are bound. For all intent and purposes, the Second Defendant has not been named nor added as a party bound to pay the outstanding rental post 31.10.2016. viii. Further, the rental agreement made is between the First Defendant and the Second Defendant. Therefore, any issues arising from this agreement is between the said parties. The Plaintiff has no locus standi and is not privy to the agreement in respect of the said rental agreement. …”. 20 [33] Relying on what had transpired in the appeal proceedings as above stated, the Plaintiff submitted that the Order of the Court of Appeal was clearly decided on the narrow point that the Defendant was not a party in Civil Suit No: S22-835-2007 but an Intervenor against whom the Plaintiff had not filed any claim. It was on this narrow ground that the Court of Appeal allowed the 2125 Appeal. [34] It was further argued that the Plaintiff’s claim herein is a fresh claim against the Defendant, which is not based upon any Tenancy Agreement between CCP and the Defendant, or any previous Order, but merely upon the same rate of rental as agreed between CCP and the Defendant in light of the Defendant’s failure to enter into a tenancy agreement with the Plaintiff since November 2016, when the Plaintiff became the beneficial owner of the said Property. In this regard, it was contended that the Court of Appeal did not restrain the Plaintiff from filing a fresh action against the Defendant, who is now rightly been named as a party, for a different claim. 21 [35] The Plaintiff placed emphasis on the fact that the Defendant is still occupying and/ or trespassing the said Property, and has not paid any rental to the Plaintiff since November 2016 nor has vacant possession of the said Property been delivered despite due notice having been given by the Plaintiff’s solicitors on 17.1.2018. Under these circumstances, the Plaintiff submitted that his rights are clearly prejudiced and the claim herein is not res judicata and/ or estopped by the doctrine of issue estoppel as the Plaintiff’s claim against the Defendant has not been adjudicated to date. Analysis and Findings of the Court - The Law on O. 18, r. 19(1) RoC 2012 [36] The basis for the Defendant’s application to strike out subparagraphs 18(iii), (iv) and (v) in the Plaintiff’s SoC is that these subparagraphs are scandalous, frivolous or vexatious; may prejudice, embarrass or delay the fair trial of the action; and/ or are otherwise an abuse of the process of the Court as provided under O. 18, r 19(1)(b), (c) and (d) RoC 2012. 22 [37] The Defendant also moved this Court to order a striking out of those subparagraphs in the SoC under the inherent power of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court: see O. 92, r. 4 RoC

[38] The locus classicus on O. 18, r. 19(1) is Bandar Builder Sdn Bhd & 2 Ors v. United Malayan Banking Corporation [1993] 4 CLJ 7 where Ramly Ali FCJ in Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur [2016] 3 MLJ 1 at pages 12 - 13 had stated the well-established legal principles in these words: “[25] The principles for striking out pleadings pursuant to O. 18 r. 19 of the ROC are well settled. It is only in a plain and obvious case that recourse should be had to the summary process under this rule; and this summary process can only be adopted when it can clearly be seen that a claim on the face of it is obviously unsustainable (see: Bandar Builder (supra); Hubbuck & Sons Ltd v. Wilkinson, Heywood & Clara Ltd [1899] 1 QB 86; Attorney General of the Dutch of 23 Lancaster v. London and North Western Railway Company [1892] 3 CH 274). [26] The tests for striking out application under O. 18 r. 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’ (emphasis added);

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; and 24

If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r.3 of the ROC; and

The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.”. [39] Totally irrelevant and wholly unnecessary pleadings would be regarded as scandalous, and not just unpleasant allegations. What is said to be scandalous pleading would vary from case to case (see, among others, Boey Oi Teng (t/a Indah Reka Construction & Trading) v Trans Resources Corporation Sdn Bhd [2001] 4 AMR 4807; Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192; and Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70). 25 [40] A pleading is frivolous or vexatious when it is obviously unsustainable. Actions struck off for being frivolous or vexatious include those which are res judicata as what has been pleaded by the Defendant in the present case. In determining whether issues pertaining to paragraphs 18(iii), (iv) and (v) of the SoC have been adjudicated or definitively settled by a decision of the Court of Appeal, the history of the matter would be most relevant and the Court is entitled to look into this aspect (see Jamir Hassan v Kang Min [1992] 2 MLJ 46 and Seruan Gemilang Makmur Sdn Bhd v Badan Perhubungan UMNO Negeri Pahang Darul Makmur (via his secretary Dato’ Ahmad Tajudin bin Sulaiman) [2010] 8 MLJ 57). [41] One of the principles of pleading is that it is meant to inform the other party of his opponent’s case and not to confuse him or to take him by surprise. Therefore, if a party introduces a pleading which is unnecessary and it tends to prejudice, embarrass or delay the fair trial of the action, such pleading is liable to be struck out under the third limb of O.18, r. 19(1) RoC 2012 (see Gan Seng Biang v Priyamas Export Corporation Sdn Bhd [2011] 3 CLJ 567). 26 [42] Finally, on the fourth limb of O.18, r. 19(1) RoC 2012, an abuse of the process of the court arises where the process of the court has not been used in a bona fide manner and has been abused. The test of proving that the claim is obviously unsustainable has, again, to be satisfied. Examples of such abuse include re-agitating the same matter which has been finally adjudicated by the superior courts and constitutes issue estoppel [see Goh Keat Poh (supra)]. - Is the prayer in paragraph (c) of the Plaintiff’s application (Enclosure 75) similar to the prayers in subparagraphs 18(iii),

(iv) and (v) of the SoC? - If so, are the reliefs sought in subparagraphs 18(iii), (iv) and (v) of the SoC caught by the principle of res judicata and/ or the doctrine of issue estoppel? [43] By way of comparison between the prayers in paragraph (c) of the Plaintiff’s application (Enclosure 75) and the prayers in subparagraphs 18(iii), (iv) and (v) of the SoC, it is immediately apparent that they are not the same word for word. However, the first question posed above cannot be answered by a simple visual 27 exercise. The determination as to whether there is indeed substantial duplication of issues and the reliefs now being sought amount to multiplicity of actions would require a more in depth investigation. [44] The legal principles on the doctrine of res judicata and issue estoppel have been the subject of judicial pronouncements in several cases where, in addition to the cases cited by Mr. Mahindarjit Singh, there are, among others, the decisions in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189; The Pacific Bank Bhd v Chan Peng Leong [1998] 2 MJ 613 (both of which were included in the Plaintiff’s Further Submission); Manoharan Malayalam v Menteri Dalam Negeri, Malaysia & Anor [2009] 2 CLJ 839; and Ibig @ David Rampas & Anor v Terisah Bahan & Ors [2016] 4 MLJ 682. [45] The meaning of res judicata and issue estoppel has been lucidly explained in the judgment of Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd (supra at pages 197 – 200) which is re-produced below: 28 “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. 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 jusdicata 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 rei publicae 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 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. … On the other hand, the issue estoppel literally means simply an issue which a party is estopped from raising in a 29 subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more, ie that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties. 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 judicatum. We are of the opinion that the aforesaid contrary view is to be preferred …”. 30 [46] From the Defendant’s submissions, it appears to me that the issue estoppel which is contended to apply here relates to the first school of thought as mentioned in the above quoted judgment of the Federal Court i.e. issues actually decided by the court in the previous proceedings as opposed to issues which might have been and which were not brought forward deliberately or due to negligence or inadvertence. [47] There are three essential elements in determining whether there is a final judgment on the merits, namely (i) an earlier decision on the issue; (ii) a final judgment on the merits; and (iii) the involvement of the same parties, or parties in privity with the original parties (see Manoharan Malayalam, supra). Mary Lim JCA in delivering the judgment of the Court in Wawasan Dengkil Properties Sdn Bhd (supra, at page 344) cautioned that the doctrine of res judicata and issue estoppel have their roots in equity and its application must be carefully and cautiously considered less injustice is occasioned. Her Ladyship went on to say that a careful comparison of the two sets of proceedings must be undertaken to see whether the present court is 31 invited to deal with exactly the issue already dealt with by the previous court and this exercise must be done with precision. [48] In this respect, I have scrutinised the Affidavits and exhibits filed herein, in particular the Defendant’s grounds of appeal and submissions in the 2125 Appeal, and I am inclined to agree with the Plaintiff’s submissions that in actuality, there is no duplication of the issues and reliefs sought to warrant a striking out of subparagraphs 18(iii), (iv) and (v) of the SoC. [49] Although there is no full grounds of judgment in the 2125 Appeal, it is safe to assume that the Court of Appeal had decided in the Defendant’s favour after due consideration of the grounds of appeal and the submissions put forth on behalf of the parties appearing before the panel on 25.4.2018. In this regard, the Defendant itself submitted before the Court of Appeal that it is not a party in Civil Suit No. S22-835-2007 and is merely an Intervenor, and should thus not be subject to a claim for arrears of rental (see paragraph (v) of the Defendant’s Written Submission in exhibit “CCK-4” as quoted in paragraph 32 of this judgment). This would mean that the Court of 32 Appeal had allowed the Defendant’s appeal, in that paragraph (c) of the High Court Order dated 5.10.2017 be set aside, on the basis that the Defendant was merely an Intervenor, and not a party to the proceedings in Civil Suit No. S22-835-2007. Under these circumstances, the decision of the Court of Appeal cannot be said to have necessarily, and with precision, determined the point in issue. [50] Furthermore, the Plaintiff was the beneficial owner of the said Property vide High Court Order dated 23.1.2015, before becoming the registered owner of the same in January 2018. On 1.11.2015, CCP and the Defendant allegedly entered into an extension of the Tenancy Agreement for the period from 1.11.2015 till 30.4.2016 although only CCP’s signature can be seen on the document titled “Extension Of The Tenancy Agreement For The Myanmar Chancery” in exhibit “SO-1” in the AIS. There is no name and signature of the witness to CCP’s signature, and no signature of “His Excellency U Zaw Myint, Ambassador” and “Chaw Su Mya, Counsellor”. Nonetheless, it is the Plaintiff’s position that rental for the said Property has been paid until 31.10.2016. 33 [51] Subsequently, letters dated 1.12.2016, 16.12.2016, 11.1.2017 and 14.3.2017 were sent by the Plaintiff’s solicitors to the Defendant’s solicitors requesting for the duly signed Removal of Private Caveat Form and the Defendant’s intentions as to the continuation of the tenancy post the Plaintiff’s name being registered as the lawful owner of the said Property [see exhibit “CCK-2” in the Plaintiff’s AIR (Enclosure 13)]. Exhibit “CCK-5” in the same AIR shows the letter from the Plaintiff’s solicitors to the Defendant’s solicitors dated 17.1.2018 to inform that, pursuant to several orders of the High Court, the Plaintiff is now the duly registered owner of the said Property and a copy of the title confirming the same was attached to the letter. [52] The Defendant has, for reasons known to itself, chosen to remain silent and unresponsive to the aforesaid letters. Hence, it is hardly surprising that the Plaintiff, in his AIS affirmed on 31.3.2017 in respect of Enclosure 75 as can be seen in exhibit “SO-2” in the Defendant’s AIR (Enclosure 14) averred as follows: “9. Saya menegaskan bahawa kegagalan dan/atau keengganan Defendan Kedua itu merupakan satu 34 keingkaran jelas terhadap Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 08.11.2016 tersebut dan saya sesungguhnya percaya bahawa kegagalan dan/atau keengganan Defendan Kedua dalam membatalkan kaveat persendirian tersebut adalah tanpa asas munasabah dan merupakan satu penganiayaan secara terang-terangan ke atas hak saya terhadap Hartanah tersebut.

Di samping itu, Defendan Kedua, sebagai satu kedutaan negara Myanmar di Malaysia sepatutnya menghormati undang-undang negara ini dengan sepenuhnya. Namun, keingkaran terhadap Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 8.11.2016 tersebut jelas menunjukkan bahawa Defendan Kedua adalah langsung tidak menghormati kedaulatan undang-undang Malaysia. 35

Seterusnya, saya sesungguhnya percaya bahawa keengganan Defendan Kedua dalam membatalkan kaveat persendiriannya bagi membolehkan nama saya didaftarkan dengan sempurnanya sebagai pemilik berdaftar Hartanah tersebut adalah kerana Defendan Kedua ingin terus tidak membayar apa-apa sewa bagi Hartanah tersebut.

Namun, setelah dinasihati oleh peguamcara saya, saya menegaskan bahawa melalui

Mahkamah Tinggi Kuala Lumpur bertarikh 8.11.2016, walaupun saya belum merupakan pemilik sah di atas Hartanah tersebut, namun saya memiliki kepentingan ke atas Hartanah tersebut, termasuk mengutip sewa bagi Hartanah tersebut dan lebih-lebih lagi, sejak 8.11.2016 saya adalah tuanpunya benefisial untuk keseluruh Hartanah tersebut.

Di samping itu, jikalau bukan kerana kaveat persendirian Defendan Kedua dan kegagalan 36 berterusan Defendan Kedua dalam membatalkannya dan/atau mengemukakan satu Borang 19G yang telah ditandatangani dengan sempurnanya, saya sesungguhnya percaya bahawa nama saya telah dengan sempurnanya didaftarkan ke atas Hartanah tersebut sebagai pemilik sah kepada Hartanah tersebut.”. [53] It is my considered opinion that the Plaintiff’s claim in the present suit is a fresh claim against the Defendant which is not based on any existing Tenancy Agreement between CCP and the Defendant albeit premised upon the same rental rate as agreed between CCP and the Defendant. The Defendant has not, at all material times, indicated any intention to enter into a tenancy agreement with the Plaintiff and has refused to pay any rental for its occupation of the said Property and to deliver vacant possession of the same to the Plaintiff. Prima facie, the Plaintiff’s rights appear to be prejudiced as the Defendant, to date, continues to occupy and/ or trespass on the said Property despite legal notices having been given by the Plaintiff’s solicitors. 37 Conclusion [54] In the upshot, the Defendant’s plea of res judicata fails because the affidavit evidence do not support a finding that the requirements of an earlier decision on the issue and a final judgment on the merits have been fulfilled. Viewed in the context of the submissions in the 2125 Appeal, the Order of the Court of Appeal does not restrain the Plaintiff from filing this action against the Defendant to claim for arrears of rental, damages to be assessed and interest thereon. And having done so, the Plaintiff should be allowed to ventilate his claim by way of a full trial. [55] The Defendant’s application in Enclosure 10 was accordingly dismissed with cost. Dated: 26 April 2019 (ALIZA SULAIMAN) JUDICIAL COMMISSIONER HIGH COURT NCvC 1 KUALA LUMPUR 38 Counsels/ Solicitors: For the Plaintiff: Mr. Jadadish Chandra Messrs. Arbain & Co Suite C-5-1, Plaza Mont Kiara No. 2, Jalan Kiara Mont Kiara 50480 Kuala Lumpur For the Defendant: Mr. Mahindarjit Singh Messrs. Mahandarjit & Co No. 30-2, Jalan PJU 5/11 Dataran Sunway Kota Damansara 47810 Petaling Jaya Selangor