Chunsi Kudkumkong v Bank Islam Malaysia Berhad (WA-22NCvC-286-06/2023)

On 28.11.2023 this Court allowed the Defendant’s application (Enc 13) to strike out the Plaintiff’s suit. The main premise was the application of the doctrine of res judicata. There was an earlier suit that involved both the parties, the same facilities of the same charge. A summary judgment was granted against the Plaintiff where the Defendant’s counterclaim was allowed. It was affirmed by the Court of Appeal. Leave was obtained to further appeal to the Federal Court where it was dismissed accordingly. 28/12/2023 15:40:09 WA-22NCvC-286-06/2023 Kand. 35

On 20.8.2019 the Defendant had filed a claim against the Plaintiff to recover the outstanding balance he owed that arose from the financing that was granted by the Defendant to 5 Star Hotel Sdn Bhd (the borrower). The suit number is WA-22M-634-08/2019 (the 2019 Suit). The Defendant’s claim was against 5 Star Hotel Sdn Bhd as the borrower and the Plaintiff as 5 Star Hotel Sdn Bhd’s director, guarantor to the loan and charger of four properties for the loan. There were other guarantors named in the 2019 Suit. The Plaintiff counterclaimed that the Defendant had failed to fulfil its promise to grant additional facility to them and to discharge the charged properties.

On 1.7.2020 the High Court granted a summary judgment for the Defendant. The Plaintiff was ordered to pay the full outstanding amount. The Plaintiff’s counterclaim was dismissed. The Plaintiff appealed against this decision.

On 7.7.2021 the Court of Appeal dismissed the Plaintiff’s appeal and affirmed the High Court’s decision. The Plaintiff then appealed to the Federal Court.

On 6.6.2023 the Federal Court dismissed the Plaintiff’s appeal. The High Court order was affirmed and is thus valid and binding on the Plaintiff.

Before the hearing of the Federal Court’s appeal, the Plaintiff filed this suit on 24.11.2022. The Plaintiff claimed that the Defendant had 3 breached the terms of the Letter of Rescheduled dated 31.1.2019 and failed to grant Ibra’ (rebate) to the total outstanding balance.

Prior to the 2019 Suit, there were earlier actions for the recovery of the same against the Plaintiff, the other guarantors and the borrower. The outcome of which favoured the Defendant.

The legal actions are the amount outstanding the borrower and the guarantors owed the Defendant. It stemmed from the three financing facilities approved by the Defendant on 25.11.2015 which were:

Business Financing-i Facility of RM37,000,000 (BF-i);

Business Cash Line-i(1) Facility of RM5,000,000 (BCL-i(1)); and

Business Cash Line-i(2) Facility of RM2,000,000. [9] There were negotiations and discussions for a schedule for the repayments. Matters of rebates were raised by the borrower and/or the Defendant. Within the same or pertaining to the same discussions were requests by the borrower and/or the Plaintiff for further financing facilities. All these were raised in the 2019 Suit as well as the earlier suits. Res judicata [10] Upon a close scrutiny of the cause papers here and the Plaintiff’s cause papers in the 2019 Suit, as well as the decisions by the High Court and the Court of Appeal, the same matters surfaced. The same issues on the rescheduled payments and contended rebate had already been decided upon by the High Court and the Court of Appeal. The Federal Court had decided that the rebate of issue was only applicable when there was a full settlement which is absent then in the 2019 Suit, as well as here in this case before this Court. It with utmost certainty that the court had already decided on the Defendant’s claim against the Plaintiff. [11] This Court decided not to adjudicate this matter again. The case cited by the Defendant – Business Media International Sdn Bhd v Hitman Solutions Live Sdn Bhd & Anor [2018] 1 LNS 1682; [2018] MLJU 1596 decided where substantial duplication of issues and relief sought ought to be struck out. It held that abuse of process under s11 Courts of Judicature Act 1965 where the matter invoked the application of the doctrine of res judicata. [12] There are plethora of cases that binds this Court and are reflective of this Court’s decision when it held that the doctrine of res judicata applied here and thus, disclosed no reasonable cause of action even from the outset. See the Court of Appeal’s decisions in Ravindra a/p Karuppiah (claiming as bearer of the letters of administration for the estate of the deceased, Muthiyah a/l Seethambaram) v CIMB Bank Bhd and another appeal [2023] 5 MLJ 106 and David Cheah Seng Chye v So Miau Song & Ors and other appeals [2023] 5 CLJ 30; [2023] 3 MLJ 726, and the Supreme Court’s decision in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189. Relief sought academic [13] The charged properties have been redeemed by the Plaintiff when the redemption sum of RM3,000,000 was fully paid to the Defendant on 28.3.2023. There were no objections and the transaction had since been completed. It would be most unfair to allow any arguments as to the reasonableness of the figure or otherwise. This Court was inclined to deem this as an afterthought on behalf of the Plaintiff. [14] It was true the Defendant contended that the Plaintiff’s action was frivolous, vexatious and abuse of court process. Coupled with the fact that the Plaintiff had paid the redemption sum which showed that he abided the earlier decisions of the courts, the Plaintiff action ought to be struck out and needed no more precious judicial time to preside over it. As held in Aura Indah Jaya Sdn Bhd v OCBC Bank (M) Bhd [2021] 10 MLJ 21: “It is a fundamental feature of our Judicial System that the courts only decide live issues but not those which have become hypothetical or only of academic importance. In Metramac Corp Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd [2006] 3 MLJ 113, the Federal Court dealt with the circumstances in which a pending matter may be rendered academic in the following terms: [8] In dealing with the circumstances in which an appeal will be rendered academic and thereby not appealable. Viscount Simon LC said in Sun Life Assurance Co of Canada v Jarvis [1944] 1 All ER 469 at pp470-471: I do not think that it would a proper exercise of authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way, If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellant hopes to get decided in its favour without in any way affecting the position between the parties … I think it is an essential quality of an appeal for to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.” Striking out [15] Limb (d) under Order 18 Rule 19(1) Rules of Court 2012 (RoC) enabled this Court to strike out the Plaintiff’s suit on the ground that it was an abuse of process, which in this case is evident. As cited by the Defendant of the Supreme Court’s decision in Lai Kim Loi v Dato Lai Fook Kim & Anor [1989] 2 MLJ 290; [1989] 1 CLJ (REP) 61, substantial duplication of issues and reliefs already decided upon is vexatious and abuse of the court process that entitled the suit to be struck out. [16] When it concluded that there must be finality in litigation, this Court reminded the parties (and counsels) that they must be careful and cautious of resuscitation attempts, lest judicial time be wasted. The cause of action in the Plaintiff’s claim was obviously unsustainable. [17] The Defendant’s Enc 13 was allowed. The Plaintiff’s suit was struck out. Costs of RM10,000 was awarded to the Defendant. DATED 27 DECEMBER 2023 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT OF MALAYA KUALA LUMPUR For the Plaintiff: Nabilah Jasmine and Arfazur Rasyeed T/n Michael Tie & Co. For Defendant: Norasidi Nadziruddin together with Syed Fadzil Al