must be such that the other person enjoys the benefit of the act or the delivery. In their Lordships’ judgment these matters must be answered at the time that the act is done or the thing delivered and this, their Lordships think, is of fundamental importance.” (emphasis added). [85] Section 71 is the statutory embodiment of the common law principle of quantum meruit. [See Tanjung Teras Sdn Bhd v Kerajaan Malaysia [2015] 9 CLJ 1002 40 CA]. Where there is a clear contractual relationship between the parties on the entitlement to payment there is no basis for a party to mount an alternative claim for compensation or quantum meruit under Section 71 of the Contracts Act 1950 [86] In my view, where there is a clear contractual relationship between the parties on the entitlement to payment there is no basis for a party to mount an alternative claim for compensation or under quantum meruit pursuant to Section 71 of the Contracts Act 1950. [See Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] 1 LNS 442 Lee Swee Seng J applying S/N mwjxJk2kfkGEybQSra2YoA Lumbers & anor v W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27, the High Court of Australia] [87] In Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd & Anor [2020] 1 LNS 442 Lee Swee Seng J cautioned the use of Section 71 of the Contracts Act 1950 to rewrite the contractual relationship and allocation of risk that were agreed to by parties. In an extended analysis of the law his lordship said- [92] Having not done, the plaintiff now wanted to prevail upon this Court to activate section 71 of the Contracts Act 1950 which was not designed for a situation where the contractual relationships have been carefully carved out and provided for exhaustively with respect to the parties' rights and obligations together with the allocation of risks in the PAM standard form contracts with respect to the main contract and the subcontract with some minor modifications. … [103] In Lumbers & anor v. W Cook Builders Pty Ltd (In Liq) 247 ALR 412; [2008] HCA 27, the High Court of Australia dismissed a claim for quantum meruit where there is a clear contractual relationship between the parties. [104] The appellants (the Lumbers) entered into a contract with W Cook & Sons Pty Ltd (Sons) under which Sons was to build a house for the Lumbers. W Cook Builders Pty Ltd (in liq) (Builders) claimed that it entered into a contract with Sons, pursuant to which Builders was to build the house and the benefit of Sons' contract with the Lumbers was transferred to Builders. The S/N mwjxJk2kfkGEybQSra2YoA Lumbers were not aware of the contract between Sons and Builders. About 4 years after the construction of the house was completed, the liquidators of Builders made a claim to the Lumbers, alleging that the Lumbers had not paid all that should have been paid for building the house. The Lumbers did not pay to Builders the money claimed. [105] Builders' claims were in contract and also in "restitution/unjust enrichment". An order was made that Builders provide security for Sons' costs. Builders did not do so, and the proceeding as against Sons was stayed. Builders proceeded against the Lumbers, and was not successful. Builders appealed, and the Full Court of the Supreme Court of South Australia allowed the appeal on the basis that Builders' restitution claim should succeed. [106] Dissatisfied with such decision, Lumbers appealed further to the High Court of Australia. In allowing the appeal and setting aside the orders of the Full Court of the Supreme Court of South Australia, the High Court of Australia referred to the case of Steele v. Tardiani (1946) 72 CLR 386; [1946] HCA 21 and Pan Ocean Shipping Co Ltd v. Creditcorp Ltd, The Trident Beauty, [1994] 1 All ER 470 (HOL) and observed as follows: "[79] The doing of work, or payment of money, for and at the request of another, are archetypal cases in which it may be said that a person receives a "benefit" at the "expense" of another which the recipient "accepts" and which it would be unconscionable for the recipient to retain without payment. S/N mwjxJk2kfkGEybQSra2YoA And as is well apparent from this court's decision in Steele v. Tardiani, an essential step in considering a claim in quantum meruit (or money paid) is to ask whether and how that claim fits with any particular contract the parties have made. It is essential to consider how the claim fits with contracts the parties have made because, as Lord Goff of Chieveley rightly warned in Pan Ocean Shipping Co, "serious difficulties arise if the law seeks to expand the law of restitution to redistribute risks for which provision has been made under an applicable contract". In a similar vein, in the comments upon §29 of the proposed Restatement (3d), "Restitution and Unjust Enrichment", the reporter says: Even if restitution is the claimant's only recourse, a claim under this Section will be denied where the imposition of a liability in restitution would overturn an existing allocation of risk or limitation of liability previously established by contract." (emphasis added) [107] In allowing the appeal, the High Court of Australia held that: "[125] First, the Lumbers accepted no bene?t (sic) at the expense of Builders which it would be unconscionable to retain. The Lumbers made a contract with Sons which either has been fully performed by both parties or has not. Sons made an arrangement or agreement with Builders which again has either been fully performed or it has not. If S/N mwjxJk2kfkGEybQSra2YoA either the agreement between Sons and the Lumbers or the agreement or arrangement between Sons and Builders has not been fully performed (because all that is owed by one party to the other has not been paid) that is a matter between the parties to the relevant agreement. A failure of performance of either agreement is no reason to conclude that Builders should then have some claim against the Lumbers, parties with whom Builders has no contract. To now impose on the Lumbers an obligation to pay Builders would constitute a radical alteration of the bargains the parties struck and of the rights and obligations which each party thus assumed. There is no warrant for doing that. (emphasis added) [108] The Court must guard against granting a claim in quantum meruit under our section 71 of the Contracts Act 1950 under the guise of doing substantial justice when parties have carefully thought of and provided for the allocation of risks under the respective main contracts and subcontracts where the rights and remedies of the parties affected can be pursued fullest to its final end. Otherwise the Court runs the risk of being accused of rewriting the bargain of the parties. … [110] Overall there is no basis for the plaintiff to stage an alternative claim under quantum meruit under section 71 of the Contracts Act 1950.” S/N mwjxJk2kfkGEybQSra2YoA (emphasis added ) [88] The reasoning by the majority in Barton v Morris and another (in place of Gywn Jones, decd), which I have set out above, would also preclude KS Lee from claiming any compensation based on section 71 Contracts Act 1950. [89] The majority held that when parties stipulate in their contract the circumstances that must occur in order to impose a legal obligation on one party to pay, there can be no implied term that there can be a claim for quantum meruit and / or unjust enrichment. It would not be unjust enrichment, because it was an outcome provided for by the agreement. Unjust enrichment mends no-one’s bargain. Is the requirement in Section 71 of the Contracts Act 1950 “and such other person enjoys the benefit thereof” satisfied? [90] If Section 71 of the Contracts Act 1950 is applicable [which I have earlier answered in the negative], in my view it is not satisfied by KS Lee as the criteria “and such other person enjoys the benefit thereof” is not satisfied. This is because KS Lee did not successfully raise and secure any equity and loan for the Project as required under Clause 4.2 of the PSFA 2018. [91] Thus, Toyo never received any benefit from KS Lee under the PSFA 2018 to satisfy this requirement in Section 71 of the Contracts Act 1950 - “and such other person enjoys the benefit thereof”. S/N mwjxJk2kfkGEybQSra2YoA [92] The importance of KS Lee delivering its side of the bargain to Toyo is well encapsulated in the following words of Lee Kink Aik, a partner in KS Lee, who affirmed on oath that - “it is a common practice in power plant industry for the consultant to receive project success fees based on the amount of equity and loan successfully raised and secured for their client especially when the latter are not a season player in this niche industry like the Defendant. Otherwise, the Defendant would have to fork out actual prevailing market rate of substantial fees to the Plaintiff purely for their services regardless of whether the latter is able to secure any investment for the Project” [Enclosure 11 reply affidavit of plaintiff paragraph 52] [Emphasis added] [93] In conclusion, Proposed Amended Question 2 is answered in the negative. [94] I now move on to Proposed Question 3. Proposed Question 3 - whether the plaintiff’s claim is barred by the wider doctrine of res judicata in view of its failure to bring this claim in Kuala Lumpur Sessions Court Suit No: WA-B52NCvC-347-08/2022? Toyo’s contention S/N mwjxJk2kfkGEybQSra2YoA [95] I reproduce below Toyo’s contention as set out in its Enclosure 34 defendant’s written submissions at paragraph 51 verbatim - There was no lawful impediment for KS Lee to make the instant claim in those earlier proceedings and filed them in the High Court with unlimited monetary jurisdiction (unlike the Sessions Court), given that: - i) The subject matter of both suits is the same, namely, the project and the engagement of KS Lee by Toyo under the ASA 2018 and PSFA 2018; ii) Toyo had terminated the ASA 2018 and PSFA 2018 by way of the same notice dated 22nd July 2022. There was clearly a connection between the claims herein and the claims made in Suit 347, given that they relate to the same engagement of KS Lee by Toyo for the same Project; iii) following the termination of the ASA 2018 (which also terminated the PSFA 2018), KS Lee pleaded in Suit 347 that it allegedly suffered loss of business opportunity for the sum of USD 108,000. My Lord would note that KS Lee is once again seeking loss of business opportunity in paragraph 70 (b) of the Amended Statement of Claim. Having succeeded in Suit 347, KS Lee ought not to be allowed to claim for a far larger sum for what it had claimed for in Suit 347 arising from the termination of ASA 2018 and PSFA 2018, because this amounts to a collateral attack on the Judgment of the Sessions Court (see the decision S/N mwjxJk2kfkGEybQSra2YoA of the Singapore Court of Appeal in Lim Geok Lin Andy v Yap Jin Meng Bryan and another appeal [2017] 2 SLR 760 at [52]); iv) KS Lee had failed to demonstrate the necessity of filing suits against Toyo for essentially the same engagement and Project by way of instalments. There is no reason for Toyo to be vexed twice by the same Plaintiff, KS Lee, who ought to have brought all its claims and dispute against Toyo in a single suit. Hence, the instant Suit is a frivolous, vexatious, scandalous, and abuse of Court process, and ought to be summarily dismissed by this Honourable Court. KS Lee’s reply [96] KS Lee replied in its Written Submissions that the Sessions Court in Suit 347 was not asked to decide KS Lee’s entitlement for Project Success Fee under the PFSA 2018 and hence, Toyo is not being vexed twice on the same issues. [97] KS Lee relies on Stuart v Goldberg Linde (a firm) and others [2008] 1 WLR 823 UK Court of Appeal and submits that it is not an abuse of court process for KS Lee to commence a separate suit to claim for Project Success Fee or the alternate claim for special damages and / or compensation for wrongful termination of the PSFA 2018 which clearly involves much more complex issues and requires viva voce evidence to be given at trial. S/N mwjxJk2kfkGEybQSra2YoA Analysis of the Court Res judicata as a doctrine of estoppel and abuse of process [98] I have set out my understanding of Res judicata as a doctrine of estoppel and abuse of process in my judgment in Mahathir Mohamad bin Mohd Ali Jinnah & Ors v Jagdish Singh A/L Amir Singh [2022] MLJU 964. I do not propose to repeat my analysis here save to highlight some significands points relevant to the facts here. [99] Res judicata as a doctrine of estoppel can be invoked by a defendant to strike out a suit in two senses. The term res judicata, or what is sometimes called the narrower sense of res judicata to distinguish it from the wider sense of res judicata, involves the reopening of a matter already decided in proceedings between the same parties, as where a party is estopped in law from seeking to relitigate a cause of action or an issue already decided in earlier proceedings. In such situation a court will strike out the 2nd suit as res judicata. [100] Besides the narrower sense of res judicata there is also a wider sense of res judicata which is linked to the doctrine of abuse of process. This is when the 2nd suit becomes an abuse of process as a party is now raising in subsequent proceedings matters which could and should therefore have been litigated in the earlier proceedings. [101] The wider sense of res judicata has been described as “both a rule of public policy and an application of the law of res judicata”. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency S/N mwjxJk2kfkGEybQSra2YoA and economy in the conduct of litigation, in the interests of the parties and the public as a whole. See Johnson v Gore Wood & Co (a firm), House of Lords [2002] 2 AC 1 at pages 20 and 24 per Lord Bingham of Cornhill. [102] However, not every matter which could have been raised in early proceedings would render the raising of it in later proceedings a breach of the wider sense of res judicata and thus necessarily an abuse of process. The key question is to ask whether in all the circumstances a party’s conduct is an abuse. See Johnson v Gore Wood at page 31 b - f Lord Bingham of Cornhill speaking in the House of Lords. [103] The wider sense of res judicata has ancient roots and can be traced back to the year 1843. The locus classicus [a Latin phrase literally meaning “classical place”] on this wider sense of res judicata is the speech by Sir James Wigram V - C in Henderson v Henderson [1843] 3 Hare 100, 114 – 115 - “In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points S/N mwjxJk2kfkGEybQSra2YoA 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.” [Emphasis added] [104] The doctrine was reaffirmed in 1975 by the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. Giving the advice of the Judicial Committee of the Privy Council, Lord Kilbrandon said at pages 589 – 590 - “The second question depends on the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with the view expressed by McMullin J that the true doctrine in its narrower sense cannot be discerned in the present series of actions, since there has not been, in the decision in no 969, any formal repudiation of the pleas raised by the appellant in no 534. Nor was Choi Kee, a party to no 534, a party to no 969. But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.” [Emphasis added] S/N mwjxJk2kfkGEybQSra2YoA [105] Reviewing the genesis of the doctrine in the year 2000, this is how Lord Bingham of Cornhill, speaking in the House of Lords, put it in Johnson v Gore Wood at pages 22 to 23 - GW contends that Mr Johnson has abused the process of the court by bringing an action against it in his own name and for his own benefit when such an action could and should have been brought, if at all, as part of or at the same time as the action brought against the firm by WWH. The allegations of negligence and breach of duty made against the firm by WWH in that action were, it is argued, essentially those upon which Mr Johnson now relies. The oral and documentary evidence relating to each action is substantially the same. To litigate these matters in separate actions on different occasions is, GW contends, to duplicate the cost and use of court time involved, to prolong the time before the matter is finally resolved, to subject GW to avoidable harassment and to mount a collateral attack on the outcome of the earlier action, settled by GW on the basis that liability was not admitted. This form of abuse of process has in recent years been taken to be that described by Sir James Wigram V - C in Henderson v Henderson 3 Hare 100, 114 – 115 : “In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject S/N mwjxJk2kfkGEybQSra2YoA of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. 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.” Thus the abuse in question need not involve the reopening of a matter already decided in proceedings between the same parties, as where a party is estopped in law from seeking to relitigate a cause of action or an issue already decided in earlier proceedings, but, as Somervell LJ put it in Greenhalgh v Mallard [1947] 2 All ER 255, 257, may cover “issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” [Emphasis added] [106] The wider sense of res judicata as set out in Johnson v Gore Wood was reaffirmed in 2018 by the Federal Court in Kerajaan Malaysia v Mat Shuhaimi bin Shafiei [2018] 2 MLJ 133 Ahmad Maarop CJ (Malaya). S/N mwjxJk2kfkGEybQSra2YoA [107] Res judicata in both its narrower and wider senses is now part of our Malaysian legal jurisprudence. Application of law to the facts [108] The key question is to ask whether in all the circumstances a party’s conduct is an abuse. See Johnson v Gore Wood at page 31 b - f Lord Bingham of Cornhill speaking in the House of Lords. Put in another form, the court asks whether a party has bona fide reasons for not including the new action in the earlier suit between the same parties. [109] Viewed in this manner, the House of Lords in Johnson v Gore Wood [2001] 1 All ER at page 499 (h) and page 502 (a) held that the new suit by Mr Johnson was not an abuse of process as he has to defer the new suit due to acute financial predicament. [110] Similarly, in Stuart v Goldberg Linde (a firm) and others [2008] 1 WLR 823 relied on by KS Lee the Court of Appeal held that there was no abuse of process for two good reasons put up by the claimant there. [111] Firstly, the claimant has been unaware until shortly before the trial of the first action of facts material to his claim for inducement of breach of contract. This can be seen from this extract of the judgment of Lloyd LJ –