JD’s act of bankruptcy was determined by the SAR in Encl 5 and cannot be disputed by the JD in this appeal, Encl 108. [10] In my judgment, the SAR rightly dismissed the JD’s Encl 33. In this appeal in Encl 108, the JC raised many grounds. I dismissed Encl 108 on one primary ground – Issue Estoppel. RES JUDICATA & ISSUE ESTOPPEL [11] Res judicata in the traditional sense was explained by the Federal Court in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783, where it was held that when a matter has been decided by a competent court, the parties are not permitted to litigate this once more for res judicata. [12] Res judicata in the wider sense or issue estoppel was authoritatively re-stated by the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, as applied by the Federal Court in Asia Commercial Finance (supra). In Yat Tung at pp 590 to 591, the Privy Council held: “The second question depends on the application of a doctrine of estoppel, namely res judicata. … 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 S/N /8b/WuOfDUW21entxPXidg should have been litigated in earlier proceedings. The locus classicus of that aspect of res judicata is the judgment of Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100, 115, where the judge says: "… 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 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." The shutting out of a "subject of litigation" - a power which no court should exercise but after a scrupulous examination of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless "special circumstances" are reserved in case justice should be found to require the non-application of the rule. For example, if it had been suggested that when the counterclaim in no. 969 came to be answered Mr. Lai was unaware, and could not reasonably have been expected to be aware, of the circumstances attending the sale to Choi Kee, it may be that the present plea against him would not have been maintainable. But no such averment has been made. The Vice-Chancellor's phrase "every point which properly belonged to S/N /8b/WuOfDUW21entxPXidg the subject of litigation" was expanded in Greenhalgh v. Mallard [1947] 2 All E.R. 255, 257, by Somervell L.J.: ‘… res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but … it covers 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 mine] Traditional Res judicata [13] It was submitted that the issues raised in Encl 33 are similar if not identical to the issues raised in Encl 41. It is said that this Appeal in Encl 108 is essentially based on the same and/or similar grounds raised in JD’s Appeal in Encl 57 which was dealt with by Justice Murad. [14] The issues raised were that the JC’ s Affidavit in Reply in opposing the JD’ s Encl 33 is defective on the ground that there is lack of proof to indicate the authority of Izham bin Ramli to depose and affirm the JC’s Affidavits. Similarly, the JD relied upon Section 133(a) Insolvency Act 1967, Rule 215 Insolvency Rules 2017 and Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal [2008] 3 CLJ 674. [15] Once grounds raised in a matter have been decided, the parties are not permitted to litigate those issues in other proceedings, see also Lin Wen-Chih & Anor v. Pacific Forest Industries Sdn Bhd & S/N /8b/WuOfDUW21entxPXidg Anor [2021] 4 MLJ 367, where the Court of Appeal held that there must be finality to a decision. [16] The issues on the authority of Messrs KK Lim to request for issuance of the Bankruptcy Notice and the authority of Izham bin Ramli to present the Bankruptcy Petition as well as the validity of the Bankruptcy Notice were raised before Justice Murad in Encl 57, see JD’s submissions in Encl 61. [17] However, Encl 57 was dismissed although Justice Murad did not expressly address each of these alleged irregularities in his written Grounds. It was argued that there was no express findings on these two (2) issues, which may not attract the operation of res judicata in the traditional sense. Issue Estoppel [18] However, issue estoppel applies. The JD’s challenges in Encl 33 and this appeal in Encl 108, challenges were or could have been raised in Encl 5, Encl 41 and its appeal in Encl 57 (see para 16 above). Indeed, Encl 41 was an application before the SAR to set aside the entire Bankruptcy proceedings. This would have included challenges to the Request to Issue Bankruptcy Notice, the Bankruptcy Notice and the Bankruptcy Petition; just like the challenges in Encl 33 and the appeal in Encl 108. [19] These facts found an issue estoppel or res judicata in the wider sense. The JD is said to be issue estopped from raising these S/N /8b/WuOfDUW21entxPXidg issues in Encl 33 as they could have, should have and were raised in Encl 41. [20] Even assuming new issues were raised in Encl 33 which are other than those raised in Encl 41, the Court of Appeal in Lin Wen-Chih (supra), has held that ‘new issues’ were also caught by the doctrine of res judicata in the wider sense. The JD is not entitled to raise issues in instalments. There is a strong policy reason behind this rule: to ensure finality to litigation. [21] Further, in Lin Wen-Chih (supra), it was held: “The causes of action and subject-matters in both the 1997 Suit and the 2013 Suit were exactly the same (although the 2013 Suit was also based on the fresh order and claimed for additional accruing interest on the debt). The issues raised and the facts and evidence adduced by the appellants in both the suits were also substantially the same. No doubt, ‘new issues’ were raised by the appellants in the 2013 Suit but they were issues that could have been, but were not, raised in the 1997 Suit. The so-called ‘new issues’ were therefore caught by the doctrine of res judicata in its wider sense. The filing of the 2013 Suit was a clear manifestation of litigation by instalment and was an abuse of process (see paras 186, 192 & 199–207).” [Emphasis mine] [22] For the sake of completeness, it is worth noting that the doctrine of issue estoppel applies in bankruptcy proceedings. In Re Jayakumar a/l Kumarappan; ex parte RHB Bank Bhd [2022] MLJU 00161, the High Court dismissed the appeal to set aside and/or strike out the Bankruptcy Notice and Creditor’s Petition for res judicata in the wider sense. It was held: S/N /8b/WuOfDUW21entxPXidg “[8] Based on Encl 95 it is clear that the Summons in Chambers therein had moved the Court to once again dismiss both the BN and the CP herein but this time on the ground of the alleged non-compliance by the JC of Sections 5(4) and (6) of the Insolvency Act 1967 and Rule 97 and 282 of the Insolvency Rules 2017 by the Judgement Creditor (JC). [12] … after perusing Encl 19 and Encl 95 respectively, that the issues and reliefs sought in Encl 95 was similar and a substantial duplication of the issues raised and reliefs to that filed and sought in Encl 19 save that the JD had now in Encl 95 raised the non-compliance of Sections 5(4) and (6) of the Insolvency Act 1967 and Rule 97 and 282 of the Insolvency Rules 2017 against the JC. [13] Accordingly, the principle of res judicata in its wider sense applies to Encl 95 and the Respondent is therefore estopped from pursuing Encl 95 as the same matter has been adjudicated by this Court in Encl 19 and which was heard and dismissed on 6.1.2021.” [Emphasis mine] [23] To reiterate, the issues concerning the Request to Issue a Bankruptcy Notice, the Bankruptcy Notice and JC’s Bankruptcy Petition could have, should have and were raised in JD’s Encl 41. As such, the JD is now barred by issue estopped from raising these issues in Encl 54 and in this Appeal in Encl 108, which will also include the alleged incorrect date of the act of bankruptcy (which was decided by the SAR in the decision on Encl 5). [24] Even if assuming that these issues were not specifically considered by Justice Murad, the JD is nonetheless issue estopped from raising them now under Encl 108, as he ought to have done so at the earliest opportunity in Encl 41. S/N /8b/WuOfDUW21entxPXidg [25] In any event, even if the JD has raised different issues on the same facts, the JD will also be issue estopped from doing so as the JD is not entitled to raise similar issues by way of instalments (see Tai May Chean (supra). In the Court of Appeal in Maril Rionebel (M) Sdn Bhd & anor v Perdana Merchant Bankers Bhd & other appeals [2001] 3 MLJ 248 where Gopal Sri Ram JCA (as His Lordship then was) stated: “A litigant who has a number of procedural and substantive grounds in opposition to any cause or matter must take all of them in one go. He cannot present his case in instalments. He cannot take one procedural point at a time and invite a separate ruling from the presiding judge. This type of advocacy which has been on the rise over the past few years results in serious delays in the various stages of litigation. Judges at first instance and magistrates are therefore advised not to entertain these so-called preliminary objections save and except where they go to the jurisdiction of the particular court”. [Emphasis mine] [26] I am of the firm view that the JD is estopped and barred from reasserting the issues under Encl 108 on the basis that such issues ought to have been and were raised in Encl 41 or Encl 57. A specific decision on these issues is unnecessary. [27] As such, this Appeal in Encl 108 is unsustainable and an abuse the Court’s process. This is enough to dispose of the appeal in Encl 108. S/N /8b/WuOfDUW21entxPXidg THE MERITS [28] In any event, the substantive challenges of the JD have little merit. [29] First, the claim that the Request to Issue Bankruptcy Notice is defective on the ground that JC’s solicitors, Messrs KK Lim are not the agents of JC and are not authorised to sign the said Request, is without merit. [30] Messrs KK Lim are the solicitors for the JC and therefore, they are authorised to make a request for the issuance of a bankruptcy notice against JD on behalf of the JC, see Timbunan Alam Development Sdn Bhd v Platicorp Holding(M) Sdn Bhd [2000] 2 MLJ 636. [31] In Francis Phillips A/L Aj Philips v Bank Perusahaan Kecil & Sederhana [2008] MLJU 152, the Court held that the request for the issuance of a bankruptcy notice may be made by the JC’s solicitors as that is expressly permitted in the prescribed Form 4 of the Bankruptcy Rules 1969, now reproduced as Rule 35 of the Insolvency Rules 2017. [32] Secondly, the JD submits that the JC’s Bankruptcy Petition is defective and irregular as there is no evidence to show that the director has been duly authorised under seal of JC to present the petition against the JD. S/N /8b/WuOfDUW21entxPXidg [33] In Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98, the Court found that the JC company was perfectly entitled to present the petition by its executive director notwithstanding that he may not have been authorised under the seal. “The proceeding in this case, however, is clearly taken under the second alternative, that is, by the company Mivan Far East Sdn Bhd. The affidavits deposed by James Martin Laughlin states clearly that he is the executive director of the judgment creditor (respondent) and that he has been authorized to make the affidavit on behalf of the respondent. Nothing in this proceeding shows that it is being undertaken by James Martin Laughlin himself on behalf of Mivan Far East Sdn Bhd. In the circumstances, the objection under r 215 is unsustainable on the facts.” [34] In Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331, where the Court held that if a petition is signed by a company’s director, it must be accepted as a matter of course that it is presented by the company under such a delegation and there should be no question as to the legality of its presentation: “It follows therefore, that if a petition is signed by a director of a company as in the instant case, it must be accepted as a matter of course that it is presented by the company under such a delegated power. There is hardly any ground to question the legality of its presentation. The petition has been as immaculately conceived as it could possibly have been. In my considered view, there is hardly any justification to read r 215 of the Rules in conjunction with s 133(a) of the Act and to find therefrom that in all the three instances of presenting a petition of a corporation under r 215, the officer must be authorized under the seal of the corporation, and S/N /8b/WuOfDUW21entxPXidg that a failure to state so in the petition renders the petition void and ineffective.” [35] Here, Izham bin Ramli who signed the petition is a director and the largest shareholder of the JC. He has stated in his affidavit verifying the JC’s Bankruptcy Petition that he has been authorised to affirm the said affidavit on behalf of the JC. [36] Most importantly, the JC itself has not challenged the authority of En Izham bin Ramli, the JC being the person is most injured by any excess of authority of En Izham; it is implicit that his authority is unquestioned. [37] Lastly, the JD has alleged that the act of bankruptcy is incorrect for failing to take into consideration the seven (7) days from the date that the Bankruptcy Notice is served on JD. [38] I agree the date of the act of bankruptcy has been determined by the learned SAR in JD’s Encl 5, and therefore, this complaint cannot be taken now. CONCLUSION [39] In the circumstances, I dismissed Encl 108 with costs. Postscript [40] The Bankruptcy process maybe long and drawn out. As the JD has correctly pointed out, the JD has a statutory right under section 92 S/N /8b/WuOfDUW21entxPXidg of the Insolvency Act 1967, to appeal every order made in the process. This has become the practice in the industry. [41] But what the JD cannot do is reproduce similar grounds of challenge in every application or appeal filed in the bankruptcy process. And without paying adverse orders as to costs. This is an abuse and a common occurrence. [42] The abuse is compounded in that these multiple applications have and will consume the time of the Judges and Registrars who hear Bankruptcy appeals on a regular basis. Issue estoppel is perhaps the cure for this unsavoury practice and abuse, as are orders preventing similar applications being repeatedly filed except with leave of Court . Dated 27th May 2025 ...................t.t........................... YA Tuan Saheran Suhendran Judicial Commissioner, High Court of Malaya, Kuala Lumpur. Jay Loh [K K LIM (Kuala Lumpur)] for the Judgment Creditor Muhammad Zahir Sanjay bin Abdullah [Kamarudin Wee & Co (Subang Jaya)] for the Judgment Debtor S/N /8b/WuOfDUW21entxPXidg Cases Referred to: • Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 • Francis Phillips A/L Aj Philips v Bank Perusahaan Kecil & Sederhana [2008] MLJU 152 • Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331 • Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor [2021] 4 MLJ 367 • Maril Rionebel (M) Sdn Bhd & anor v Perdana Merchant Bankers Bhd & other appeals [2001] 3 MLJ 248 • Mega Sakti Sdn Bhd v. Wong Wai Hoi & Ors & Another Appeal [2008] 3 CLJ 674 • Re Jayakumar a/l Kumarappan; ex parte RHB Bank Bhd [2022] MLJU 00161 • Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98 • Timbunan Alam Development Sdn Bhd v Platicorp Holding(M) Sdn Bhd [2000] 2 MLJ 636 • Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 Legislation referred to: • Insolvency Act 1967 • Rule 215 Insolvency Rules 2017 • Bankruptcy Rules 1969 • Rule 35 of the Insolvency Rules 2017 Decision date: 28th April 2025 S/N /8b/WuOfDUW21entxPXidg