WA-12ANCC-27-03/2024
High Court of Malaysia27 Aug 2024
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“issues already decided by a competent court. viii) The Appellant’s reliance on the case of Triple Zest (supra) is also misplaced, as the issue of whether the Friendly Loan Agreement contravenes the Moneylenders Act 1951 is no longer relevant. E] CONCLUSION [31] Based on the foregoing, the Counterclaim is scandalous, fr”
“9(1)(b), the word ‘scandalous’ means wholly unnecessary and irrelevant, and not just unpleasant allegations: Boey Oi Leng (t/a Indah Reka Construction & Trading) v Trans Resources Corporation Sdn Bhd [2001] MLJU 566', [2001] 4 AMR 4807 (HC). A pleading is ‘frivolous or vexatious’ when it is obviously unsustainable. …..”
“ssues were not determined when Summary Judgment was granted is without merit. iii) In Dato’ Ahmad Johari bin Tun Abdul Razak v. A. Santamil Selvi a/p Alau Malay @ Anna Malay & Ors and another appeal [2020] MLJU 562 the earlier suit filed by the plaintiffs was struck out leading to the plaintiffs filling a second suit.”
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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) RAYUAN SIVIL NO.: WA-12ANCC-27-03/2024 ANTARA MOHD ISMARUZAIDI BIN MOHAMMAD ZAKUAN (NO. K/P: 820510-11-5195) … PERAYU DAN AGASURIA SDN BHD (NO. SYARIKAT: 1313917-H) … RESPONDEN (DALAM MAHKAMAH SESYEN DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN SIVIL NO.: WA-B52NCC-216-03/2021 ANTARA AGASURIA SDN BHD (NO. SYARIKAT: 1313917-H) … PLAINTIF
1
This was an appeal by the Appellant against the decision of the Sessions Court on 27.2.2024 that allowed the Respondent’s application to strike out the Appellant’s Counterclaim under Order 18 Rule 19(1)(b), (c) and (d) of the Rules of Court 2012 (“ROC”) (“this Striking Out Application”)(“this Appeal”).
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Having heard submissions from both parties I dismissed this Appeal with costs. These are my grounds. S/N e/Z2qT5UsEq1t6vttKfmLA **Note : Serial number will be used to verify the originality of this document via eFILING portal
3
The Respondent filed an action against the Appellant to recover a loan amount of RM453,738.50 (“the Loan Amount”) pursuant to a Friendly Loan Agreement dated 22.7.2019 (“Friendly Loan Agreement”).
4
The Loan Amount was disbursed to the Appellant through several transactions: i) RM144,164.50 via RENTAS to the Appellant’s Alliance Bank account on 10.4.2019; ii) RM35,000.00 via cash deposit to the same account on 11.4.2019; iii) RM274,574.00 via cheque dated 22.7.2019.
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Under the Friendly Loan Agreement, the Appellant was required to repay the Loan Amount within two months from the date of the Friendly Loan Agreement without interest.
6
The Appellant failed to make any repayment despite demands from the Respondent.
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This resulted in the Respondent filing the present action on 17.3.2021.
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The Appellant filed its Defence and Counterclaim on 7.10.2021. In the Counterclaim the Appellant sought a declaration that the Friendly Loan Agreement was invalid, null and void ab initio.
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The Respondent filed its Reply and Defence to Counterclaim on 22.10.2021.
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The Respondent applied for Summary Judgment of its claim under Order 14 Rule 1(1) ROC (“the Summary Judgment Application”).
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On 11.2.2022, the Sessions Court allowed the Summary Judgment Application (“Summary Judgment”). S/N e/Z2qT5UsEq1t6vttKfmLA **Note : Serial number will be used to verify the originality of this document via eFILING portal
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The Appellant appealed against the Sessions Court’s decision granting Summary Judgment to the High Court. The High Court dismissed the appeal on 22.9.2022.
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The Appellant then filed a further appeal to the Court of Appeal, which appeal was also dismissed.
14
The Respondent filed this Striking Out Application on 4.12.2023. The Sessions Court granted the application on 27.2.2024, which led to this Appeal.
15
The Appellant’s arguments are summarised below.
16
The Respondent’s Affidavit in Reply affirmed on 8.1.2024 and filed in support of this Striking Out Application was invalid as it raised new issues regarding estoppel and res judicata that were not pleaded in the Statement of Claim and the Plaintiff’s Affidavit In Support of this Striking Out Application.
17
The validity of the Friendly Loan Agreement needs to be determined through a full trial, citing the Federal Court case of Triple Zest Trading & Suppliers Sdn Bhd & Ors v. Applied Business Technologies Sdn Bhd [2024] 1 MLRA 144.
18
The Counterclaim is valid and justified as the legal principles regarding the Friendly Loan Agreement’s validity have never been determined in a full trial.
19
The Appellant’s arguments are summarised below.
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The Counterclaim is scandalous, frivolous and vexatious as the validity of the Friendly Loan Agreement has been conclusively determined through the Summary Judgment proceedings up to the Court of Appeal. S/N e/Z2qT5UsEq1t6vttKfmLA **Note : Serial number will be used to verify the originality of this document via eFILING portal
21
The doctrine of res judicata and issue estoppel bars the Appellant from relitigating the same issues.
22
The Counterclaim constitutes an abuse of process as it attempts to collaterally attack final orders of the court.
23
The Plaintiff’s claim (the “Main Claim”) is based on the Friendly Loan Agreement dated 22.7.2019. This is clearly stated in paragraphs 4 and 6 of the Statement of Claim, which are reproduced below.: “4. Plaintif telah bersetuju untuk meminjamkan Jumlah Pinjaman tersebut dan kedua-dua pihak telah menandatangani Perjanjian Pinjaman Mesra (Friendly Loan Agreement) (selepas ini dirujuk sebagai “Perjanjian tersebut”) tanpa faedah bertarikh 22 Julai 2019.” “6. Pada setiap masa material, Defendan tersebut telah gagal untuk membayar Jumlah Pinjaman tersebut dalam tempoh masa yang dijanjikan.” (own emphasis added)
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The reliefs sought by the Respondent in its Statement of Claim (paragraph 14), for which Summary Judgment was granted, are as follows: “14.1 Jumlah Pinjaman tersebut sebanyak RM 453,738.50;
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14.2 Faedah pada kadar 5% setahun ke atas jumlah yang dinyatakan dalam perenggan14.1 di atas harus dibayar dari tarikh penghakiman direkodkan sehingga tarikh penyelesaian penuh dan muktamad;
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14.3 Kos;” (own emphasis added) [25] The Appellant’s Counterclaim is also based on the same Friendly Loan Agreement, as clearly established in paragraphs 14 and 15 of the Counterclaim, which state as follows: S/N e/Z2qT5UsEq1t6vttKfmLA Page 5 of 10 “14. Defendan menyatakan bahawa Perjanjian pinjaman tersebut sekiranya wujud dan dibuktikan adalah terbatal, tidak sah dan void ab initio memandangkan Plaintif bukanlah pemberi pinjaman berlesen. (own emphasis added) [26] In the Counterclaim, the Appellant essentially sought the following reliefs, as outlined in paragraphs 19(a) and (b) of the Counterclaim: “(a) Satu deklarasi bahawa Perjanjian Pinjaman Mesra (‘Friendly Loan Agreement’) bertarikh 22.07.2019 adalah tidak sah, batal dan void ab initio; (own emphasis added) [27] The Main Claim and the Counterclaim both address the same issue, and the reliefs sought in each of them effectively offset or nullify each other. This is because: i) The reliefs in the Statement of Claim are based on the premise that the Friendly Loan Agreement is valid; ii)
Preamble
Whereas, the Counterclaim seeks to have the said Agreement declared invalid. [28] Therefore, it is clear that in deciding the Summary Judgment application, the Sessions Court determined: i) the validity of the Friendly Loan Agreement; and ii) this included the Appellant’s defences and arguments as pleaded in the Defence and Counterclaim. [29] The Counterclaim is based on the matters pleaded in the Defence (paragraph 16 of the Counterclaim), and as such, the Defence and Counterclaim must be considered together as one. S/N e/Z2qT5UsEq1t6vttKfmLA Page 6 of 10 [30] In the circumstances, I find that the Sessions Court was correct in striking out the Counterclaim and agree with the Respondent’s submissions for the following reasons: i) The validity of the Agreement has been conclusively determined through the Summary Judgment proceedings, which were affirmed by both the High Court and Court of Appeal. ii) The Appellant’s defences, including the argument that the Appellant is not a licensed moneylender and that the Friendly Loan Agreement contravenes moneylending laws, were determined by the Sessions Court when Summary Judgment was granted. This decision has since been upheld by both the High Court and the Court of Appeal. Therefore, the Appellant’s argument that these issues were not determined when Summary Judgment was granted is without merit. iii) In Dato’ Ahmad Johari bin Tun Abdul Razak v. A. Santamil Selvi a/p Alau Malay @ Anna Malay & Ors and another appeal [2020] MLJU 562 the earlier suit filed by the plaintiffs was struck out leading to the plaintiffs filling a second suit. The Court of Appeal held as follows: “[50] On the factual matrix of this case, we are of the view, that the 2nd present Suit is in fact no more than a repetition, in thinly veiled new guise of the cause of action of the 1st or earlier suit and the 2nd/present Suit was filed with the intention to re-litigate and re-open the earlier suit which was struck out and dismissed by the 1st Court. This is so since the parties, the facts of the case, the causes of action and the reliefs sought by the Plaintiffs are identical, if not one and the same. Even if the “continuing tort" as averred to in the 2nd/present Suit could be said to be a different cause of action, which we are of the view it is not; that cause of action was already present or in existence when the 1st Suit was filed on 9.6.2014 and no reasons or explanations were proffered by the Plaintiffs as to why it was not pleaded and brought or filed together with the 1st Suit. In light of the principle expounded by Henderson v Henderson (supra), that a party should bring forward once and for all every points which properly belonged to the subject of litigation and not to litigate by way of instalments, the 2nd/present Suit ought to be dismissed on the ground that it is res judicata in its extended or broader S/N e/Z2qT5UsEq1t6vttKfmLA Page 7 of 10 sense and an abuse of the process of court. The Learned HCJ’s finding to the contrary is thus unsustainable.” (own emphasis added) iv) The Appellant’s attempt to raise the same issues again via the Counterclaim is tantamount to relitigating issues that have been finally determined, which amounts to an abuse of process as explained in Middy Industries Sdn Bhd & Ors v. Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511. v) As held by the Federal Court in Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd [2013] 6 CLJ 673, once a regularly obtained judgment has been perfected, the matter becomes res judicata and cannot be relitigated. vi) Hence the principle of res judicata applies to prevent the Appellant from relitigating these same issues in the Counterclaim which has already been determined when Summary Judgment was granted. vii) The Respondent is not precluded from raising res judicata and issue estoppel though it was not pleaded as these issues arose after Summary Judgment was granted. In any event, it does not change the fact that the issues in the Counterclaim have been determined and is therefore caught by the principle of res judicata which is intended to prevent relitigation of issues already decided by a competent court. viii) The Appellant’s reliance on the case of Triple Zest (supra) is also misplaced, as the issue of whether the Friendly Loan Agreement contravenes the Moneylenders Act 1951 is no longer relevant. E] CONCLUSION [31] Based on the foregoing, the Counterclaim is scandalous, frivolous, vexatious and obviously unsustainable (Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1). The Counterclaim is thus bound to fail S/N e/Z2qT5UsEq1t6vttKfmLA Page 8 of 10 (Raja Zainal Abidin Bin Raja Haji Tachik & 3 Ors. v. British-American Life & General Insurance Bhd. [1993] 3 CLJ 6). [32] I will conclude with the following passage from the Court of Appeal in the case of Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2011] 2 MLJ 192, which is applicable to the present case: “[17] In the context of O 18 r 19(1)(b), the word ‘scandalous’ means wholly unnecessary and irrelevant, and not just unpleasant allegations: Boey Oi Leng (t/a Indah Reka Construction & Trading) v Trans Resources Corporation Sdn Bhd [2001] MLJU 566', [2001] 4 AMR 4807 (HC). A pleading is ‘frivolous or vexatious’ when it is obviously unsustainable. ….. .” (own emphasis added) [33] For the reasons stated above, I dismissed this Appeal with costs of RM5,000/- in favour of the Respondent. Dated this 16th day of January, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, Kuala Lumpur (Commercial Division (NCC 3)) S/N e/Z2qT5UsEq1t6vttKfmLA Page 9 of 10 COUNSEL FOR THE APPELLANT/DEFENDANT Muhammad Iman Bin Norhizam Messrs Adnan Sharida & Associates No. 3-1-1A, 3-1-1B, 3-2-2A & 2B, Jalan Medan PB 2A, Seksyen 9, 43650 Bandar Baru Bangi, Selangor Tel: 03-89255875 Emel: litigation@adnansharida.com COUNSEL FOR THE RESPONDENT/PLAINTIFF Tan Shir Lay Messrs Emily Shirlay No. 15-05, 15th Floor, Tower 2, Faber Towers, Taman Desa, 58100 Kuala Lumpur Tel: 019-2121006 Emel: emilyshirlay.legal@gmail.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 14 Rule 1(1) ▪ Order 18 Rule 19(1)(b), (c) and (d) CASES CITED
1
Dato’ Ahmad Johari bin Tun Abdul Razak v. A. Santamil Selvi a/p Alau Malay @ Anna Malay & Ors and another appeal [2020] MLJU 562 S/N e/Z2qT5UsEq1t6vttKfmLA Page 10 of 10 2. Harapan Permai Sdn Bhd v. Sabah Forest Industries Sdn Bhd [2011]
3
Middy Industries Sdn Bhd & Ors v. Arensi-Marley (M) Sdn Bhd [2013]
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Raja Zainal Abidin Bin Raja Haji Tachik & 3 Ors. v. British-American
5
Serac Asia Sdn Bhd v. Sepakat Insurance Brokers Sdn Bhd [2013] 6
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Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul
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Triple Zest Trading & Suppliers Sdn Bhd & Ors v. Applied Business Technologies Sdn Bhd [2024] 1 MLRA 144 S/N e/Z2qT5UsEq1t6vttKfmLA
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