Ho Hau Wong & 2 yang Lain v Tan Kim Chuan & 10 yang Lain (WA-22NCC-263-06/2017 (Lampiran 51))

RED AND BLUE INVESTMENT CO LTD

1.

2.

3.

4.

5.

6.

CHIN CHOONG HOONG @ PHILIP CHIN

CHIN CHOONG KIT @ JOSEPH CHIN

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10.

LIM LAIN SOON CHIN PENG SIN DEFENDANTS JUDGMENT Introduction [1] The third to eleventh defendants applied to strike out the plaintiffs‟ claim under O. 18 r. 19(1)(b) and (d) of the Rules of Court 2012. 2 [2] I have allowed the application and will set out the reasons for the decision. Brief facts [3] This suit is a sequel from the suits filed by the plaintiffs in the Ipoh High Court against the third to eleventh defendants. The plaintiffs had in 2013 filed three suits against the third to eleventh defendants. They were suit no. 22NCVC-102- 06/2013, suit no. 22NCVC-104-06/2013 and suit no. 22NCVC-109/2013. [4] These suits were subsequently consolidated with 22NCVC- 102-06/2013 („suit 102‟). The plaintiffs‟ claim were pertaining to the shares and properties of the third, 4th and 5th defendants („the companies‟). [5] The parties had on 15 January 2014 entered into three consent orders before Justice Lee Swee Seng to appoint the second defendant („KPMG‟) as the court‟s expert. KPMG was to determine the contributions made by all the original shareholders into the companies. [6] KPMG submitted its final report titled „Independent Forensic Review – Final Report‟ dated 9 June 2014. [7] Parties then reached a settlement and recorded a consent judgment on 24 June 2014 before Justice Lee Swee Seng. 3 One of the pertinent term of the consent judgment requires KPMG to determine the ratio of the parties‟ shareholdings in the companies based on their cash contributions. Parties are then required to transfer shares based on KPMG‟s findings. [8] KPMG prepared two reports through letters dated 30 January 2015 and 16 February 2015. [9] The applicants then instructed the companies‟ company secretary to rectify the shareholdings of the companies based on KPMG‟s latest reports. This was only done after the companies held the board of directors meeting and subsequently Extraordinary General Meetings. [10] KPMG‟s latest report and the rectification are the items of dispute by the plaintiff. [11] Unhappy with the rectifications, the plaintiffs proceeded to commence several suits against the applicants at the Ipoh High Court in 2015. These suits were suits no. 22NCVC-65- 06/2015, 22NCVC-68-06/2015 and 22NCVC-70-06/2015. These three suits were subsequently consolidated with suit no. 22NCVC-65-06/2015 („suit 65‟). [12] Under suit 65, the plaintiffs in gist sought for a declaration that their shares were unlawfully transferred and in breach of the consent judgment. 4 [13] The applicants proceeded to file an application to strike out suit 65, which was heard and dismissed by Justice Samsudin Bin Hassan on 10 December 2015. The applicants then appealed to the Court of Appeal, which dismissed the appeal, but ordered that suit 65 be stayed pending the determination of the cash contribution by all parties by KPMG pursuant to the consent judgment. This stay was still in force at the time this application was heard. [14] The applicants in September 2015 proceeded to file an application for further orders in suit 102 [Enclosure 128]. Through this application, the applicants sought to obtain several declarations, such as a declaration on KPMG‟s two letters dated 30 January 2015 and 16 February 2015 pertaining to the parties‟ cash contribution, and in the alternative an order for KPMG to complete the extended scope of work to determine the parties cash contribution. [15] Enclosure 128 was heard by SM Komathy JC (as her ladyship was), who in May 2016 ordered KPMG to complete the extended scope of work to ascertain the cash contributions by the applicants and defendants in the 3 companies. There was no appeal against this order by any party. [16] In December 2016, KPMG filed an application in suit 102 to seek further clarification on the meaning of “cash contribution” in the consent judgment [enclosure 163]. 5 [17] The plaintiffs then filed an application to strike out enclosure 163 [enclosure 177]. This application was heard and dismissed by Justice Anselm Charles Fernandis on 7 March 2018. Findings [18] The Supreme Court in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36 (SC) held that the summary procedure under O. 18 r. 19 RC 2012 could only be exercised in plain and obvious cases. The apex court also held that the claim must on the face of it be obviously unsustainable. [19] The applicants have submitted on several grounds. I will only set out my findings on the grounds that I find sufficient to address the applicants‟ application. Multiplicity of proceedings [20] No more than one court should adjudicate on the same or similar issues. If parties are not restrained from doing so, it will lead to an abuse of process. It will lead to endless litigation with no certainty or finality. [21] In Tay Choo Foo v Harrisons Holdings (M) Bhd [2001] 4 CLJ 52, the defendant succeeded in striking out the plaintiff‟s claim as the court found that the issues raised in that suit were already the subject matter being contested in another 6 suit. The court held that there should not be two different courts adjudicating on the same subject, and that the plaintiff‟s duplicate claim was an abuse of process. [23] Similarly here, I find that the reliefs sought by the plaintiffs were on issues that have already been decided by SM Komathy JC. The pertinent part of the order for enclosure 128 reads as follows:- “Mr Tan Kim Chuan of KPMG shall complete the extended scope of work to ascertain the contributions in cash by the Plaintiffs and the Defendants into Emerald Deals Sdn Bhd, Glamour Ideals Sdn Bhd and Glamour Portfolio Sdn Bhd pursuant to the Consent Judgment dated 24 June 2016” [24] The reliefs sought by the plaintiffs under paragraph 34 (a),

(b), (c), (f) and (g) of the statement of claim falls squarely within the scope of order made by her ladyship. The essence of the reliefs mentioned are as follows:-

Whether the Final Report was conclusive as to the cash contributions of the parties;

Whether KPMG‟s Letters are part of KPMG‟s performance of the Consent Judgment and binding on the parties;

Whether KPMG is in breach of their duties under the Consent Judgment as they had not prepared the report? 7

Whether KPMG has abused the process of Court?

Whether an injunction to restrain KPMG from acting any further or taking any further steps in regards to and in matters pertaining to Suit 102 ought to be granted? [25] I also find that the convoluted facts of this saga have been ventilated and some of which have been decided in suit 102 and suit 65. It is quite obvious that the prevailing issues are in respect of the consent orders, KPMG‟s final report and the consent judgment in suit 102. If the plaintiff wishes to seek redress then the proper forum should be in suit 102 as the consent judgment provides for parties the liberty to apply for further directions and orders. [26] I am also in agreement with the applicants‟ counsel‟s submission that the plaintiffs‟ prayer under paragraph 34(g) suggests that the plaintiffs had admitted that there is a duplicity with the Ipoh suits. The paragraph concerned reads as follows:- “g. An injunction to prohibit and/or restrain the defendants, their servants and/or their agents from acting any further or taking any further steps in regards to and in matters pertaining to Civil Suit in High Court of Malaya in Ipoh High Court Suit No: 22NCVC-102-06/2013, Ipoh High Court Suit No: 22NCVC-104-06/2013 and Ipoh High Court Suit No: 22NCVC-109-06/2013 until 8 the determination of the Plaintiffs claim at full trial of this action.” [27] Furthermore, as the first and second defendants have been ordered to complete their task of ascertaining the parties‟ cash contribution, the reliefs sought under paragraph 34 (a),

and (c) are res judicata, and the relief sought under (g) if allowed would be inconsistent with the order. [28] I would further add that the plaintiffs did not appeal against the SM Komathy JC‟s order pertaining to enclosure 128. The subject matter has therefore come to an end and should not be litigated again here. Estoppel [29] The plaintiffs have not applied to set aside the consent orders dated 15 January 2014 and the consent judgment dated 24 June 2014. They remain valid and binding on all parties until set aside. [30] In the case of Crest Worldwide Sdn Bhd v Mudajaya Corporation Berhad [2016] 1 LNS 425, the court held:- “It is irrelevant whether that determination was arrived by means of a finding by the court after a full trial or through consensual terms. A consent judgment is no less binding on the parties as any other form of judgment…” 9 “Until and unless the consent judgment is set aside, that consent judgment which is actually yet another contract between the parties and thereby the completion date of the project by the defendant remains valid and binding on both parties.” (emphasis added) [31] The plaintiffs‟ allegation that the consent judgment had been repudiated is misconceived. The plaintiffs‟ actions subsequent to suit 102 and suit 65 indicate the contrary. They had for instance sought for the court‟s clarification on the consent judgment in suit 102. In suit 65, the plaintiffs are seeking for a determination of the parties‟ shareholdings in the companies. The plaintiffs also did not object to the applicants‟ alternative prayers in enclosure 28, and as mentioned earlier, did not appeal against SM Komathy JC‟s order in respect of enclosure 28. These are just a few of the many instances. [32] I therefore take the view that the plaintiffs are estopped from now contending that the consent judgment had been frustrated or repudiated. [33] In Annie Quah Lay Nah v Syed Jafer Properties Sdn Bhd & Ors and another appeal [2007] 1 CLJ 1, Gopal Sri Ram JCA held:- “… If one of the parties to litigation is faced with two mutually exclusive alternatives and he elects to pursue one, then he 10 will be estopped from retreating from the position he has adopted by his election. “Spencer, Bower and Turner “The Law relating to Estoppel by Representation” third edn (1977) summarizes the law on the subject as follows: The last of the four fields in which the doctrine under discussion may be observed in operation, and, perhaps, the most important and interesting of them all, because yielding the greatest variety of illustrative examples, is the conduct of the litigation, in the course of which it very frequently happens that a party litigant is confronted with the necessity of immediately making a definite choice between two possible courses of action which are mutually exclusive. Whenever this occurs, the general rule of estoppel by election comes into play: that is to say, if by word, or (as is almost invariably the case) by conduct or inaction, he represents to the other party litigant his intention to adopt one of the two alternatives and inconsistent proceedings or positions, with the result that the latter is thereby encouraged to adopt or persevere in a line of conduct which he otherwise would have abandoned or modified, or (as the case may be) to change tactics from which he otherwise would never have deviated, the first party is estopped, as against his antagonist, from resorting afterwards to the course or attitude which, of his free choice, he has waived or discarded.” (emphasis added) 11 Conclusion [34] I had for these reasons allowed the applicants‟ application and award costs in the sum of RM8,000. Dated: 24 July 2018 -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) Counsel for the plaintiff Vignesh Kumar & Ritalakhsmi Chellapah [Messrs Vignesh Kumar & Associates] Counsel for the third to eleventh defendants Raymond Mah & John Chan [Messrs Mah Weng Kwai & Associates