Letchumy A/P Ramachandran v 1. Soo Chee Ming (22NCVC-625-11/2017)

SOO CHEE MING

JOHN HENRY LOUIS (yang beramal sebagai seorang peguam di atas nama dan gaya

SANJAYDRAN A/L SIVANESAN

PEJABAT TANAH HULU LANGAT … DEFENDANTS BEFORE Y.A. TUAN GUNALAN A/L MUNIANDY JUDGE, HIGH COURT Page 2 of 21 GROUNDS OF DECISION [1] Vide this application (Enclosure 13), the 2nd Defendant (‘D2’) in this action applies to strike out the Plaintiff (‘P’)’s Writ and Statement of Claim (‘SOC’) pursuant to Order 18 rule 19(b), (c) and/or (d) of the Rules of Court, 2012 (‘ROC’). Grounds of Application [2] In support of Enclosure 13, D2 in essence invokes the doctrine of res judicata and estoppel by reliance on the following grounds:

The Plaintiff’s present action is barred by res judicata as the issue of the validity and enforceability of the Court Validated SPA has already been determined on merits by the learned Judge (Datuk Azimah, J) in a previous action;

(ii) The applicability of the principle of res judicata and estoppel is a matter of law and not of fact or evidence; there are no evidential issues to warrant a full trial; Page 3 of 21

(iii) Datuk Azimah, J had already found all allegations of fraud and forgery by Letcumy (‘Plaintiff’) to be false and are mere bare allegations;

(iv) Datuk Azimah, J had validated the Court Validated SPA and ordered the removal of the Plaintiff’s caveat over the subject property;

The Plaintiff in not filing a reply to defence against the 2nd Defendant’s Defence has admitted to the defence of res judicata and estoppel which was first raised in the 2nd

(vi) It is a time-celebrated rule of law that the plea of res judicata and estoppel are grounds to strike out a plaintiff’s action to be frivolous, vexatious and an abuse of the process of the Court.

(vii) It is a time-celebrated rule of law that when a previous Court in a previous originating summons (to remove a caveat) has already determined the validity of a sale and purchase contract, no parties (inclusive of third parties) can initiate a subsequent action re-litigating the same issues on the validity of the sale and purchase contract; Page 4 of 21

(viii) It is a time-celebrated rule of law that the plea of res judicata and estoppel are not limited to parties to the suit but also extend to third parties not involved in the previous suit;

(ix) It is time-celebrated rule of law that res judicata and estoppel apply even to issues not raised in the previous suit but are clearly related to the issues determined in the previous suit; and

It is a time-celebrated rule of law that a failure to add third parties, or parties as co-litigants, or failure to make a counter-claim against parties triggers the application of the principle of res judicata and estoppel. [3] D2 contends that P’s present action is a blatant attempt to wrongfully re-litigate and re-agitate matters regarding validity of a sale and purchase agreement/instruments which has already been validated and affirmed by a previous finding of a different High Court in the earlier action. [4] Further, that P here has already failed to invalidate the sanctity, validity and operability of a sale and purchase agreement in a previous suit and now attempts to take another unlawful bite of the cherry in relitigating the same contentions in the present suit. Page 5 of 21 [5] D2 also contends that it has been adjudicated by another High Court that P has since 22.11.2013 entered into a sale and purchase agreement (‘SPA’) with the 1st Defendant, Soo Chee Ming (‘SCM’) where P has agreed to sell and SCM has agreed to purchase property held under HS(D) PM 3887 Lot No 44846 Seksyen 15 Bandar Ampang Daerah Negeri Selangor (‘said Property’) for the consideration of RM104,000.00 (‘purchase price’). [6] Finally, that another High Court had adjudicated as follows:

that SCM had duly adhered to all of his obligations under the Court Validated SPA in paying in full the purchase price together with rents due under the said Property. Part of the payment was even made by cheque (paid to the personal name of Letchumy) which was even cashed out/realized by Letchumy herself at the bank.

that Letchumy had duly received the full payment of the purchase price and has admitted and/or acknowledged such a receipt as evinced by a payment voucher signed by Letchumy herself, and the undeniable fact that Letchumy personally had proceeded to cash out the cheque. Page 6 of 21

that Letchumy herself had duly executed and signed all the requisite documents of transfer, inclusive of but not limited to Form 19G, as well as Form 14A were duly executed and signed by Letchumy herself.

the LHDN has already issued the Ad valorem duty Notice for the transfer as per the Court Validated SPA. Background Facts Between the Plaintiff and 2nd Defendant [7] P has in her submission set out a summary of background facts as follows: “The Plaintiff was the registered owner of a property held under PM 3887/M2/2/170, Lot No. 44846 Sek. 15, Bandar Ampang Daerah Ulu Langat, Negeri Selangor. The 2nd Defendant is an advocate and solicitor of the High Court of Malaya practising in M/S. John & Associates at No.59-1, Jalan Kuchai Maju 1, Off Jalan Kuchai Lama, 58200 Kuala Lumpur. The Plaintiff claims that she did not sell her property to the 1st Defendant on the 22/11/2013. Page 7 of 21 The Plaintiff claims that she has never been to the 2nd Defendant’s legal firm M/s. John & Associates…. Kuala Lumpur till to date and has never signed any document in the presence of the attesting solicitor, Mr.John Henry Louis, the 2nd Defendant in the present suit on the 22/11/2013. The Plaintiff claims that she did not sign the following documents exhibited as exhibits LB-1 and LB-2 before the attesting solicitor, the 2nd Defendant here: Exhibit LB-1

Sales and Purchase Agreement dated 22/11/2013 .

Payment Voucher dated 22/11/2013.

Memorandum of Transfer to transfer the property from Plaintiff to 1st Defendant.

Withdrawal of caveat dated 21/06/2015 purportedly signed by the Plaintiff and attended by the 2nd Defendant.

Warrant to act purported to be signed by the Plaintiff to appoint the 2nd Defendant dated 19/11/2013. The Plaintiff claims her signature in the above said documents had been forged either by the 1st or / and 2nd Defendant or / and 3rd Defendant. The Plaintiff has filed an application for discovery under Order 24, Rules of Court, 2012 (E 16) to obtain relevant originals purported to have been signed by the Plaintiff from the 1st, 2nd and 4th Defendants to be forwarded to a handwriting expert and to lead expert evidence under Section 45 of the Evidence Act, 1950.

The Land office has agreed to provide the original Memorandum of Transfer (14A) and the Withdrawal of Caveat form both purported to have been signed by Plaintiff in their custody for the same purpose.

However the 2nd Defendant had refused to hand over the originals in his possession and has contested the Plaintiff’s discovery application.

The said discovery application is fixed for hearing on the 21/3/2018 before Your Lordship. The Plaintiff has lodged 3 police reports against the 1st, 2nd and the 3rd Defendants on 4/12/2013, 21/7/2015 and 12/08/2015 respectively with regard to the purported sale and falsification of her signature. The Memorandum of Transfer (14A) to transfer the said property from the Plaintiff to the 1st Defendant and the Sale and Purchase Agreement dated 22/11/2013 were all attested by the 2nd Defendant here. After having been duped by the 3rd Defendant into parting with her original title, the Plaintiff lodged a caveat on the said property, PM 3887/M2/2/170, Lot No. 44846 Sek. 15, Bandar Ampang Daerah Ulu Langat, Negeri Selangor to prevent her property from being transferred to any person. The 2nd Defendant as solicitors for the 1st Defendant in the year 2015 presented a caveat withdrawal form purported to be executed by the Plaintiff to the 4th Defendant, in order to remove the Page 10 of 21 Plaintiff’s caveat which was lodged and thereafter to transfer the said property to the 1st Defendant. Coincidentally, the Plaintiff conducted a land search, it is then that the Plaintiff discovered the attempt made by the 2nd Defendant to remove the Plaintiff’s caveat. The Plaintiff approached the 4th Defendant and lodged a complaint about the purported withdrawal. As a result, the Plaintiff’s caveat was retained. The 4th Defendant handed over the original title to the Plaintiff. The original title is still with the Plaintiff. The 1st Defendant thereafter filed an originating summons at Shah Alam High Court via case No. BA-24-306-03/2016 and successfully obtained an order to remove the caveat lodged by the Plaintiff. Her appeal to Court of Appeal to retain her caveat was also not successful. The Plaintiff has lodged a complaint to the Lembaga Tatatertib Peguam Peguam. The complainant has been heard by a panel and decision is pending.” Page 11 of 21 Brief History of OS No. BA 24-306-03/2016 [8] I adopt the history as summarised in the Plaintiff’s submission as follows: “This is an action that was brought by the 1st Defendant here against the Plaintiff for the purpose of removing the caveat lodged by her on 09/12/2013 presentation number 8304/2013. This caveat had prevented the transfer of the said property from the Plaintiff to the 1st Defendant. The primary issue for determination in the above said suit under the “3 stage test” layed down in Luggage Distributions (M) Sdn Bhd. v. Tan Hor Teng @ Tan Tien Chi & Anor [1995] 2 CLJ 713 was whether Plaintiff here had caveatable interest in her property. The next issue for determination in the above said suit was whether the Plaintiff here being the registered owner could caveat her own property. The previous suit was moved on a narrow ground under Section 327 of the National Land Code, 1965, that is, to show that the 1st Defendant was aggrieved. Page 12 of 21 The application of the “3 stage test” is obvious from the grounds of judgment exhibited by the 2nd Defendant.” The Law on Striking Out Pleadings [9] The Defendant’s application to strike out the Writ and Summons and Statement of Claim is pursuant to Order 18 Rule 19(a), (b) and (d) of Rules of Court 2012. [10] The law is settled in this matter, the leading case being Bandar Builder Sdn. Bhd. & Ors. v United Malayan Banking Corporation Bhd.v [1993] 4 CLJ 7 (Tab A) where the Supreme Court through Mohamed Dzaiddin bin Hj Abdullah SCJ stated the principles to be the following: “The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule. This summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable.” Page 13 of 21 [11] In the case of New Straits Times (Malaysia) Bhd. v Kumpulan Kertas Niaga Sdn. Bhd & Anor [1985] 1 MLJ 226, the Federal Court through Mohamed Azmi FJ (Tab B) pronounced that: “It is therefore clear law that in an application to strike out pleadings under order 18 rule 19(1) (a), no evidence shall be admissible, and the court must consider only the pleadings for the purpose of determining whether the Statement of Claim disclosed no reasonable cause of action or the Statement of Defence disclosed no defence. The test to be applied is whether on the face of the pleading, the court is prepared to say that the cause of action or the defence is obviously unsustainable” The Law on The Doctrine of Res Judicata [12] In the Court of Appeal case of Mokhtar bin Amin v Mohamed Moktar bin Omar [2001] 4 MLJ 329 Gopal Sri Ram, JCA (as he then was) held that: “The issue of the validity of the sale agreement had already been determined by the High Court in the caveat proceedings. It would appear that prima facie, the defendant has a complete answer to Page 14 of 21 the claim for specific relief mounted by the plaintiff in his writ. The parties were bound by the doctrine of res judicata from reagitating an issue that has already been resolved in earlier proceedings.” [13] The leading authority on this doctrine is the Supreme Court case of Asia Commercial Finance (F) Bhd. v Kawal Teliti Sdn. Bhd. [1995] 3 MLJ where it was held: “On the other hand, the issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceeding. However, the issue estoppel, in a nutshell, from a consideration of case law, means in law a lot more, ie that neither of the same parties or their privies in a subsequent proceeding is entitled to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties. This sounds like explaining a truism, but it is the corollary from that statement that is all important and that could have given birth to the controversies alluded to above; the corollary being that neither of such parties will be allowed to adduce evidence or advance any argument to contradict such decision. In this respect, we respectfully agree with Peter Gibson J in Lawlor v Gray [1984] 3 All Page 15 of 21 ER 345 at p 350, who said: ‘Issue estoppel … prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause of action.’” Analysis and Finding [14] In her statement of claim (‘SOC’) P has pleaded fraud against Defendants 1), 2) and 3) (‘D1, D2 and D3’). In compliance with Order 18, Rules 7 and 12 of the Rules of Court 2012 (‘ROC’) particulars of fraud have been particularised against D1, D2 and D3 in the SOC together with a narrative of the manner in which the alleged fraud was committed against her in regard to the alleged execution by her of the impugned documents which P denies ever having executed. Likewise, P’s cause of action and the reliefs sought against D2 have been sufficiently and clearly pleaded. [15] In opposing the present O. 18 application, the thrust of the Plaintiff’s contention is that there are obviously 2 conflicting versions of the material facts which rendered this case not being amenable for the suit to be struck out summarily under O. 18 r. 19, ROC. It was pointed out that the two versions are completely different and irreconcilable to be resolved on affidavit evidence alone without the benefit of oral evidence. Page 16 of 21 [16] Briefly, the Plaintiff asserts categorically that she has never been to the 2nd Defendant’s legal firm of M/S John & Associates at No.59-1, Jalan Kuchai Maju 1, Off Jalan Kuchai Lama, 58200 Kuala Lumpur on 19/11/2013 and 22/11/2013 and has never signed any document or received a sum of RM 55,000.00 cash from the 1st Defendant in the presence of the 2nd Defendant on 22/11/2013. She also denies signing the said payment voucher dated 22/11/2013. [17] She further asserts that she did not sign any caveat withdrawal form on 19/11/2013 and on 22/11/2013 in the presence of the 2nd Defendant to withdraw a caveat that was lodged by her on the subject property. [18] Lastly, that after being duped by the D3 into parting with the original title she (‘P’) lodged a caveat on the said property to protect her rights after failing to retrieve her original title from D3. [19] In contrast, D2’s version of the facts is in gist as follows. [20] First, that P executed the impugned documents in the presence of D2 at the latter’s office. Second, that P collected cash of RM55,000.00 from D1 in the presence of D2 and thereafter, signed a payment voucher prepared by D2. Third, that P signed a statutory caveat withdrawal form on

22.11.2013, again in the presence of D2. Finally that on 19.11.2013 P signed a Warrant To Act to appoint D2 to carry out the sale. [21] On the issue of conflict of evidence pertaining to the issues for determination in this case, the Plaintiff contended, inter alia, that it is trite law that factual issues or disputes surrounding allegations of fraud and forgery cannot be decided by affidavit evidence. It can only be determined after the parties are subjected to exploration of truth under the cross examination process in a full trial. [22] D2’s basic contention in support of the striking out application is premised on the primary ground of res judicata in that the issues raised in the present suit had been ventilated in the earlier suit between D1 and P and had been adjudicated. [23] As against D2’s assertions of fact, P denied having received or collected any cash of RM55,000.00 from D1 in the presence of D2 on 22.11.2013 pursuant to the alleged SPA dated the same day. P contended correctly that her pleading disclosed a valid cause of action against D2 that has not been judicially determined by any court of law as D2 was not a party to the previous OS action and had not been heard. Hence, this suit is not a relitigation or readjudication of the issues raised against D2. Page 18 of 21 [24] As pointed out by P, the issues of contention presently arising such as whether the Plaintiff signed the warrant to act to appoint D2 on 19/11/2013 and then went back to D2’s office again to sign the Sale and Purchase Agreement, Power of Attorney, Payment Voucher and withdrawal of caveat on the 22/11/2013 remain as live issues that were not decided by the judgment in the previous suit. Hence, the principle of res judicata does not apply to the present factual matrix. [25] P also raised the issue of there being no mention in the SPA dated 22.11.2013 purported to have been executed by her of any existing caveats lodged by her over the property. As such, that it was incredible for D2 to assert that he had obtained the Plaintiff’s signature on 22.11.2013 for the removal of a caveat to be lodged by the Plaintiff in 2015. This assertion undermined the whole credibility and truth of D2’s evidence and version of the important events relevant to the present dispute. Lastly, the Plaintiff raised the issue that no reasonable person would make full payment on the date of signing of the agreement (SPA) on 22.11.2013, when the agreement stipulates that the completion period is 3 months from 22.11.2013. Page 19 of 21 Conclusion [26] I have considered the grounds of application, the claim against the 2nd Defendant and the contentions of both parties. [27] As this is an O.18 r. 19 application to strike out the Writ and the Statement of Claim (‘SOC’) summarily, the order should be granted only in plain and obvious cases where the SOC does not disclose any reasonable cause of action, is frivolous, vexatious, an abuse of process of the Court, etc. [28] The main ground in support of L. 13 is premised on the doctrine of res judicata based on a previous action against the Plaintiff vide an Originating Summons (‘OS’) brought by the 1st Deft (D1). The OS, while it involves the SPA in this case, doesn’t concern D2 or bind any future action against D2 by P. Moreover, the OS was adjudicated on affidavit evidence wherein conflict of facts cannot be resolved or determined satisfactorily. Hence, the principle of res judicata cannot be invoked to bar this claim by P against D2 in a civil suit which is meant for all the parties to adduce both documentary and oral evidence for a determination of the conflicting facts. [29] P has made serious allegations against all the Defendants, especially D2, regarding fraud and forgery which are the foundation of this Page 20 of 21 claim. These are obviously important questions of fact that can only be resolved through a trial where all the evidence of both parties are fully heard. [30] I, therefore, hold that, based on the pleadings and disputed/contested facts, this is wholly and obviously not a fit and appropriate case to be disposed of summarily and for the Writ and SOC to be struck out without P being given the opportunity for the issues raised to be ventilated at a trial with all the evidence being heard. [31] Enclosure 13 is, accordingly, dismissed with costs in the cause. Dated : 25 Jun 2018 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam Page 21 of 21 COUNSEL: For the Plaintiff : Mr. Govin T Durai Messrs Govin T. Durai & Co. Klang, Selangor For the 2nd Defendant : En. Hashim Ibrahim together with En. Sulfilmi Ibrahim and Miss Nabila Jamaludin Messrs Hasan Sabri & Hashim Nazri Shah Alam, Selangor