An order setting aside the Summary Judgment (KLSC Suit No. WA-B52NCC-357-07/2020).” [16] The Defendant initially filed an application to strike out the Plaintiff’s Originating Summons under Order 18 Rule 19(a), (b) and (d) of the Rules of Court 2012. However, the Defendant subsequently withdrew this striking out application and decided to focus on opposing the Originating Summons instead. Page 6 of 19 [17] The Plaintiff also filed an application (Enclosure 27) to add Profound as a party to this Originating Summons. Nevertheless, Enclosure 27 was dismissed with costs in the cause, as I found no necessity for Profound to be joined, given that the Plaintiff had ample opportunity to apply for its joinder in KLSC Suit No. WA-22C- 8-02/2016 but failed to do so. C] PLAINTIFF’S ARGUMENTS [18] The Plaintiff contended that the doctrine of res judicata did not apply, as new evidence had emerged showing that Profound had appointed new solicitors (Messrs The Chambers of Shobhana), who had, by a letter of demand dated 10.8.2022, informed the Plaintiff, inter alia, that Profound would be asserting claims for the RM600,000, RM291,750, and RM425,000. [19] The Plaintiff argued that Profound’s new solicitors, Messrs The Chambers of Shobhana, had made it clear that the Defendant was not entitled to the aforementioned sums, and that Profound had no opportunity to challenge the Defendant’s claim in KLSC Suit No. WA-B52NCC-357-07/2020, as the Defendant had neither served the Writ and Statement of Claim on Profound nor joined Profound as a party to those proceedings. [20] The Plaintiff submitted that Messrs Chin & Rakan, who were then acting for Profound in KLSC Suit No. WA-22C-8-02/2016, were aware that the monies belonged to Profound, but failed to include Profound as a party to KLSC Suit No. WA-B52NCC-357-07/2020, and did not serve the proceedings on them, which, according to the Plaintiff, had a fraudulent impact on Profound. [21] The Plaintiff argued that the Defendant perpetrated fraud against Profound by failing to join Profound as a party to KLSC Suit No. WA-B52NCC-357-07/2020, and that the Summary Judgment was obtained unlawfully and illegally, as the Defendant lacked locus standi to initiate the action. [22] The Plaintiff relied on section 44 of the Evidence Act 1950 and the Federal Court case of Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 2 MLRA Page 7 of 19 263, arguing that the doctrine of res judicata was not applicable to impeach or set aside an earlier judgment obtained by fraud. [23] The Plaintiff cited Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ 7, contending that where a decision infringed a legal provision, the decision was null and void. D] DEFENDANT’S ARGUMENTS [24] The Defendant submitted that the Plaintiff failed on multiple issues, and therefore the Court should dismiss this Originating Summons. [25] The Defendant argued that the reference in the intitulement and prayers 1, 2 and 3 of the Originating Summons to “Kuala Lumpur Sessions Court No. WA-22C-8-02/2016” and the “Consent Judgment” therein was factually wrong. [26] The Defendant contended that the correct reference is KLSC Suit No. WA-B52NCC-357-07/2020, in which the Sessions Court granted the Summary Judgment against the Plaintiff for the principal sum of RM425,000. [27] The Defendant argued that the Consent Judgment referred to by the Plaintiff was filed under Kuala Lumpur High Court No. WA-22C- 8-02/2016 (Profound v. Pembinaan Megah and Gabungan Strategik). [28] The Defendant submitted that the issues in this Originating Summons had already been fully ventilated and decided by the Sessions Court, as well as on appeal in the High Court, where the Plaintiff was unsuccessful at both levels. [29] The Defendant argued that the matter was res judicata and that the Court was functus officio, as the Plaintiff had already appealed the Sessions Court’s Summary Judgment to the High Court, which affirmed the decision in its dismissal of the appeal. [30] The Defendant cited the locus classicus case of Bandar Builder Sdn Bhd v. United Malayan Bankin Corp Bhd [1993] 3 MLJ 36 and relied on Chua Weng Meng v. Wong Kok Kong [1999] 6 CLJ Page 8 of 19 7; [1999] 2 MLJ 416 and Halim Saad v. Chan Yok Peng [2021] 1 CLJ 499. [31] The Defendant submitted that the Plaintiff failed to disclose the High Court Appeal Dismissal Decision in this Originating Summons. [32] The Defendant argued that if the Plaintiff was dissatisfied with the Sessions Court’s Summary Judgment, which was affirmed by the High Court Appeal Dismissal Decision, the proper course of action would have been to appeal to the Court of Appeal under Section 67 of the Courts of Judicature Act 1964. E] ANALYSIS AND FINDINGS Issue 1: Flawed Reliefs in this Originating Summons [33] Prayers (1), (2) and (3) of this Originating Summons appear to be fundamentally flawed in that: i) The letter dated 20.10.2017, referred to in prayers (1) and (2), and the letter dated 6.2.2018, referred to in prayer (3), were issued after the Consent Judgment was entered on 17.1.2017, therefore, they could not have been used as exhibits in the Consent Judgment. ii) The letter dated 20.10.2017 and 6.2.2018 (“the said Letters”) are not relevant to the Consent Judgment. iii) The said Letters are, in their nature, mere correspondence and do not, by themselves, constitute any agreement, contract, or legal instrument capable of being declared null and void. iv) Even if the said Letters were in fact presented as evidence or exhibited in proceedings that led to the Consent Judgment, or even in the Summary Judgment proceedings, the Court cannot declare these correspondences, which were admitted as evidence in another court case, to be null and void. There is simply no legal basis for such a declaration, and neither Page 9 of 19 has the Plaintiff cited any authority where the Court has done so. [34] While I acknowledge that the Plaintiff may have mistakenly referred to the Consent Judgment and KLSC Suit No. WA-22C-8-02/2016 instead of the Summary Judgment and KLSC Suit No. WA-B52NCC-357-07/2020, no formal or oral application has been made to amend prayers (1), (2), and (3) of this Originating Summons. [35] Further, the Plaintiff did not specifically respond to the Defendant’s argument regarding the incorrect reference to the Consent Judgment and KLSC Suit No. WA-22C-8-02/2016 in his submissions. [36] Therefore, for the reasons outlined above, prayers (1), (2), and (3) of this Originating Summons are fundamentally flawed in their original form and cannot be entertained. As such, these prayers are rejected. Issue 2: Collateral Attack on Earlier Decisions [37] First and foremost, it must be made clear that the Plaintiff seeks to expressly and implicitly set aside several court decisions and orders, as follows: Express Challenges: i) The Plaintiff explicitly seeks to set aside the Summary Judgment obtained in KLSC Suit No. WA-B52NCC-357- 07/2020 (prayer (1) of this Originating Summons). Implicit Challenges: ii) While not explicitly stated as a separate prayer, the Plaintiff implicitly challenges the High Court decision in Appeal No. WA-12ANCC-10-01/2021 that affirmed the Summary Judgment, as setting aside the Summary Judgment would necessarily undermine the High Court’s affirmation of that decision. Page 10 of 19 iii) In relation to the Consent Judgment in KLSC Suit No. WA- 22C-8-02/2016, the Plaintiff does not directly seek to set it aside. Instead, the Plaintiff indirectly challenges the Consent Judgment by seeking declarations that the said Letters exhibited in the Consent Judgment be declared null and void. In this regard the Plaintiff is effectively challenging the evidentiary foundation used in connection with the Consent Judgment, and contending that the interpretation of entitlements flowing from the Consent Judgment was erroneous on the basis that the money belongs to Profound and not to the Defendant. [38] It is evident that the Plaintiff’s ultimate aim is to set aside the Summary Judgment, thereby challenging not only that judgment but also the High Court Appeal Dismissal Decision, and to some extent, the Consent Judgment. This amounts to a comprehensive challenge to the decisions of all three Courts involved, namely: the Sessions Court that granted the Summary Judgment, the High Court that dismissed the Summary Judgment Appeal, and the Sessions Court that recorded the Consent Judgment (collectively “the Three Court Decisions”). [39] The Plaintiff seeks to set aside the Three Court Decisions based on the following principal grounds: i) Fraudulent procurement of judgment: The Plaintiff alleges that the Sessions Court judgment was obtained by fraud, as the Defendant failed to disclose material facts and deliberately omitted to join Profound despite asserting a claim over funds allegedly belonging to the company. This omission deprived Profound of the opportunity to be heard, thereby rendering the judgment tainted and liable to be set aside under section 44 of the Evidence Act 1950. ii) Lack of authority and capacity on the part of the Defendant: The Defendant had resigned as a director of Profound Projects in 2011 and expressly waived any future claims against the company. At the material time, he held no position as director or shareholder and thus lacked the legal capacity or locus standi to assert any proprietary claim to the funds belonging to the company. Any action for or on behalf of Profound Projects must be brought by the company itself or through a duly authorised derivative action. Page 11 of 19 iii) Breach of company law and failure to obtain board approval: There was no resolution of the board of directors of Profound Projects authorising any payment of the sum of RM425,000 to the Defendant. Under the Companies Act 2016, any disposal of company assets requires a proper board resolution. iv) Misapplication of summary judgment procedure: The Plaintiff contends that the Sessions Court erred in granting Summary Judgment, as the matter involved substantial factual disputes, including the ownership of the RM425,000 and the Defendant’s entitlement thereto. The issues raised warranted viva voce evidence and a full trial. Summary determination was inappropriate and occasioned a miscarriage of justice. [40] The legal position and the requirements for setting aside a judgment or order of the court are trite. [41] The Federal Court in Badiaddin Mohd Mahidin & Anor v. Arab-Malaysia Finance Bhd [1998] 2 CLJ 75 referred to the following passage in case of Hock Hua Bank Bhd v. Sahari Murid [1980] 1 LNS 92 and held as follows: “Reverting to the point relied on by the Court of Appeal, that of the perfected order not being capable of being amended or altered except for certain exceptions as stated in Hock Hua Bank supra, a passage therefrom as quoted by the Court of Appeal is set out as follows: Clearly the court has no power under any application in the same action to alter, vary or set aside a judgement regularly obtained after it is drawn up receipt under the slip rule in O. 28 r. 11 of the Rules of Supreme Court 1957 (O. 20 r. 11 of the Rules of High Court 1980) so far as necessary to correct errors in expressing the intention of the court: Re. St Nazarie Co., Kelsey v. Doune; Hession v. Jones, unless it is a judgement by default or made in the absence of a party at the trial or hearing. But if a judgement or order has been obtained by fraud or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh action will lie to impeach the original judgement: Hip Foong Hong c. Neotia & Co., & Jonesco v. Beard. The hearing of the action will in a proper case be expedited: Smith v. Peizer.” (own emphasis added) Page 12 of 19 [42] In Chee Pok Choy & Ors v. Scotch Leasing Sdn Bhd [2001] 2 CLJ 321, a case which involved “deliberate fraud practised upon the court” similar to the allegation in this Originating Summons, the Court of Appeal held at pages 336 and 342 as follows: “The principle then to be culled from the authorities is that a judgment may be impeached for deliberate fraud practised upon the court, and it is insufficient to show that a litigant merely convinced the court through misleading or erroneous evidence. Whether the test has been met in any given case must, I think, depend on the facts and circumstances of the particular case. But there is some guidance in the cases as to how fraud may be established. There is a most useful passage in Satish Chandra v. Satish Kantha Roy AIR [1923] PC 73, 76:” (own emphasis added) [43] I must emphasise that similar allegations of concealment of material information and fraud committed against the Court in the present case were also raised in Chee Pok Choy (supra) and Seruan Gemilang (supra), which ultimately necessitated trials in both cases to determine whether the High Court orders should be set aside. [44] However, the Plaintiff in this action is attempting to set aside the Three Court Decisions via this Originating Summons, relying solely on affidavit evidence. This is untenable, as actions based on fraud cannot typically be determined by affidavit evidence alone. [45] While the Plaintiff now contends that this Originating Summons is based on fresh evidence and issues not previously adjudicated, I find that: i) The issues now relied upon by the Plaintiff including the Defendant’s alleged lack of entitlement to the RM425,000, the absence of a board resolution by Profound, and the nature of the letter dated 20.10.2017, were in fact raised at and considered by the Sessions Court during the Summary Judgment application and again during by the High Court during the Summary Judgment Appeal, a fact that Plaintiff did not chose to highlight to this Court. Page 13 of 19 ii) The arguments advanced in this Originating Summons are substantially the same as those previously canvassed before both the Sessions Court and the High Court. iii) The purported “fresh evidence” relied upon by the Plaintiff falls far short of the legal threshold for fresh evidence, as the documents and factual assertions either had already been adduced in the earlier proceedings or the issues surrounding them had already been ventilated. iv) In any event, the alleged “fresh evidence” does not disclose any new material capable of establishing fraud, and both the Sessions Court and the High Court (involved in the Summary Judgment) had already determined that no fraud was present in the procurement of the judgment. v) The Plaintiff has not presented any fresh evidence that was not available at the Sessions Court or High Court appeal, which would justify this Court considering setting aside the Summary Judgment and High Court Appeal Decision. In this regard, the letter dated 6.2.2018 (referred to in prayer (3) of this Originating Summons) was available when the Summary Judgment Appeal was heard, and the Plaintiff could have applied to adduce it as fresh evidence. The Plaintiff’s failure to do so is entirely his own doing. vi) The Plaintiff has therefore failed to establish that the Summary Judgment was obtained by fraud within the meaning contemplated by Section 44 of the Evidence Act 1950 or any other grounds that would justify this Court in look behind the Judgment. [46] The Court of Appeal in Penang Port Commission v. Kanawagi s/o Seprumaniam [2008] 6 MLJ 686 referred to the case of Smith v. Linskills (a firm) and another [1996] 2 All ER 353, CA; [1996] 1 WLR 763 to define what constitutes a “collateral attack” and held as follows: “[54] … According to the case of Smith v Linskills (a firm) and another [1996] 2 All ER 353, CA at p 35; [1996] 1WLR 763 at p 769, that the word ‘collateral’ means ‘an attack not made in the proceedings which gave rise to the Page 14 of 19 decision which it is sought to impugn; not, in other words, an attack made by way of appeal in the earlier proceedings themselves’.” (own emphasis added) [47] Therefore, this Originating Summons constitute an impermissible collateral attack on the Three Court Decisions. The Federal Court in CIMB Investment Bank Bhd v. Metroplex Holdings Sdn Bhd [2014] CLJ 1012 held as follows: “unless the order is a nullity in the sense as enunciated in Badiaddin, it could not be attacked in collateral proceedings.” (own emphasis added) Issue 3: Proper Procedure is to Appeal against the High Court Appeal Dismissal Decision [48] If the Plaintiff was dissatisfied with the High Court Appeal Dismissal Decision (pertaining to the Summary Judgment obtained at the Sessions Court), the correct procedure would have been to appeal to the Court of Appeal within the time prescribed under section 67 of the Courts of Judicature Act 1964 and Rule 12 of the Rules of the Court of Appeal 1994. [49] As an advocate and solicitor, the Plaintiff would be fully aware of the proper appellate procedures. [50] However, the Plaintiff did not file an appeal to the Court of Appeal against the High Court Appeal Dismissal Decision, but instead chose to file this Originating Summons to set aside the Summary Judgment and, by implication, the High Court Appeal Dismissal Decision that affirmed it. [51] Thus, this Originating Summons is an abuse of the process of Court (Penang Port Commission (supra)). Page 15 of 19 Issue 4: Res Judicata and “Second Bite at the Cherry” [52] The principle of res judicata applies to bar this Originating Summons. The matters complained of in the Originating Summons have already been ventilated and decided by the Sessions Court (KLSC Suit No. WA-B52NCC-357-07/2020) and High Court (Appeal No. WA-12ANCC-10-01/2021) in favour of the Defendant. [53] Crucially, during the hearing of this Originating Summons, and in response to a question from the Court, the Plaintiff acknowledged that the issues raised in the present case were previously raised in the Sessions Court and also during the Summary Judgment Appeal before the High Court Judge. [54] This confirms that the issues now raised in this Originating Summons were previously considered by both the Sessions Court and the High Court. [55] Therefore, the principle of res judicata applies in the present case to matters that were actually decided in earlier proceedings. In any event, the instant case can be caught under the scope of the broader doctrine of res judicata, which extends to matters that could have been, or should have been, raised in the earlier proceedings (Joseph Paulus Lantip & Ors v. Unilever Plc [2012] 7 CLJ 693 (FC); Henderson v. Henderson [1843] 3 Hare 100, 67 ER 313). [56] The Plaintiff did not appeal against the High Court Appeal Dismissal Decision and this Originating Summons amounts to seeking a “second bite at the cherry”. Issue 5: Timing and Motivation of this Originating Summons [57] I note the timing of this Originating Summons, filed on 4.7.2022, just days before the time limit for enforcement expired, and after the Defendant’s letter of demand, dated 17.6.2022, to enforce the Summary Judgment. Page 16 of 19 [58] This timing suggests that this Originating Summons was filed as a defensive measure to prevent or delay the enforcement of the Summary Judgment, rather than as a genuine attempt to seek declaratory relief based on new circumstances or evidence. F] CONCLUSION [59] I am satisfied that the matters raised in the Originating Summons have been conclusively determined by the Sessions Court and affirmed by the High Court. Even if they have not, the Plaintiff had the opportunity to address them, as the alleged fresh evidence was available at the latest when the Summary Judgment Appeal was heard. [60] The doctrine of res judicata bars any further litigation on the same issues between the same parties and the broader doctrine of res judicata, includes matters that could have been, or should have been, raised in the earlier proceedings (Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC); Joseph Paulus Lantip (supra); Henderson (supra)). [61] The Plaintiff has failed to establish any exceptional circumstances that would warrant setting aside the Summary Judgment or any of the Three Court Decisions. The allegations of fraud are unsubstantiated and insufficient to overcome the principle of res judicata. [62] The proper course of action for the Plaintiff, if dissatisfied with the Summary Judgment affirmed by the High Court, was to appeal to the Court of Appeal within the prescribed time limits. The failure to do so cannot be remedied by initiating a fresh action before this Court. [63] This Originating Summons and the reliefs sought constitute a collateral attack on the Three Court Decisions, or either of them. [64] This Originating Summons seeks to circumvent the proper appeal procedures and re-litigate matters that have been finally determined. Page 17 of 19 [65] To borrow a phrase from Penang Port Commission (supra): “if that is not an abuse of the process of the court, I do not know what is”. (own emphasis added) [66] For the reasons set out above, I dismissed this Originating Summons with costs in favour of the Defendant. Dated this 13th day of June, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) COUNSEL FOR THE PLAINTIFF Joseph A/L Iruthayam Messrs Joseph Iruthayam & Co. 3-5, Tingkat 3, No. 30, Jalan Thambypillai, Brickfields, 50470 Kuala Lumpur Tel: 03-22721205/22725715 Emel: josephiruthayam@yahoo.com Page 18 of 19 COUNSEL FOR THE DEFENDANT Lee Eu Kong Messrs Vincent Lim & Partners No. 18-3A, Tingkat 3, Jalan Kampong Attap, 50460 Kuala Lumpur Tel: 03-22734675 Emel: vlp.lawyers@gmail.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 14 ▪ Order 18 Rule 19(a), (b) and (d) Evidence Act 1950 ▪ Section 44 Courts of Judicature Act 1964 ▪ Section 67 Rules of the Court of Appeal 1994 ▪ Rule 12 CASES CITED