Mystique Bay Sdn Bhd v Chin Kok Chiu (BA-24-55-12/2020)

On 28.09.1995, Standard Chartered Bank Malaysia Berhad (“SCB’) granted a loan to the Defendant to buy the property. In return, the Defendant charged the property to SCB as security for the said loan. Soon after, the Defendant defaulted on the loan forcing SCB to initiate Order for Sale (“OFS”) proceedings against the Defendant to recover the property;

(ii) The Defendant opposed the application for the OFS. Despite so, the OFS was granted on 23.06.2006. The Defendant appealed against the OFS to the Court of Appeal. Due to the non-attendance by the Defendant at the hearing of the appeal, the same was struck out on 07.05.2010;

(iii) On 20.11.2007, SCB and the Plaintiff obtained a vesting order from the Kuala Lumpur High Court where all of SCB’s rights over the property was vested in the Plaintiff;

(iv) On 13.06.2014, the Defendant initiated a Writ of Summons in the Shah Alam High Court against SCB and the Plaintiff to, among others, declare that the charge is void and unenforceable. This suit was struck out on 29.09.2014 and 29.10.2014 by Justice Hadhariah binti Syed Ismail (now JCA) on the basis that the action was res judicata and abuse of court process. The Defendant appealed against the decision of Justice Hadhariah to the Court of Appeal and later to Federal Court. Both appeals were dismissed accordingly;

In 2017, the Defendant once again filed another Writ of Summons in the Kuala Lumpur High Court to declare the charge void and unenforceable. The suit was heard and dismissed under Order 14A of the ROC 2012 on 18.01.2019. The Defendant’s appeal was dismissed by the Court of Appeal and the Federal Court; and

(vi) In 2020, the Defendant again filed another Writ of Summons in the Shah Alam High Court vide Civil Suit No. BA-22NCVC- 386-09/2020 (‘the 2020 Writ”) seeking the same declaration as in the 2014 and the 2017 Writ Action. This led to the Plaintiff filing the present OS. Note: The 2020 Writ was struck out by this Court on 25.10.2022 premised on the principles of res judicata and abuse of Court Process. Summary of the Plaintiff’s grounds in support of the present OS [3] The Plaintiff’s contend that the Defendant fits the definition of a ‘vexatious litigant’ as: a. he has habitually and persistently filed legal proceedings on the same issue in court with no regard to merit and decisions of the various courts involved including the Court of Appeal and the Federal Court; b. he has no reasonable course of action; c. his claim is caught by res judicata; and d. his claim is time barred. [4] The Defendant’s contention that the Stay of Execution which he obtained at the Court of Appeal vide a Notice of Motion dated 27.07.2007 was of a permanent effect and hence there was no requirement for him to pursue his appeal. This is clear misconception as the stay was granted pending the disposal of the Main Appeal. When the Main Appeal was dismissed by Justice Hadhariah Binti Syed Ismail in 2014, the Stay Order cased to have any legal force or effect. [5] Without this Court granting the reliefs sought, the Defendant will continue to ignore whatever decisions made by the Courts and continue to file his case via different forums in hope of permanently delaying the auction of the Property. Summary of the Defendant’s submission in opposing the OS [6] In opposing the Plaintiff’s application, the Defendant contended that: a. the Defendant has the absolute right to be heard under the “audi alteram partem” principle; b. all stay applications filed to stay or set aside execution proceedings are also the right and entitlement of the Respondent which the Courts cannot deny; c. Out of the three (3) Civil Suits filed, 2 have been heard (the 2014 and 2017 Writ) and one (the 2020 Writ) which is pending have been filed to seek appropriate remedies to which the Defendant is entitled to. All appeal to the Court of Appeal and the Federal Court similarly are rights guaranteed by our legal system; d. All proceedings were commenced in good faith. To put all of them together and categorizing them as “habitual and persistent” actions amounting to vexatious proceedings is clearly motivated with an ulterior purpose i.e. to prevent the 2020 Writ from being heard; e. the 2020 Suit is not caught by res judicata; and f. the Stay of Execution Order issued by the Court of Appeal vide a Notice of Motion dated 27.07.2007 was of a permanent effect. Principles of law for involved [7] The mechanism to deal with person/s described as “vexatious litigant/s” is provided under Article 17 in the Schedule to the Courts of Judicature Act 1964. The objective of this provision is to prevent abuse of court process and to ensure that all parties have equal access to justice. It also provides a mechanism wherein victims of vexatious litigant/s can come to enjoy the fruits of their hard-won litigation in peace. [8] The above provision (read together with Section 25(2) of the Courts of Judicature Act 1967) reads as follows: “25. Powers of the High Court.

without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.” “Art.17.Vexatious litigants. Power to restrain any person who has habitually and persistently and without reasonable cause instituted vexations legal proceedings in any court, whether against the same or different person, from instituting any legal proceedings in any court save by leave of a Judge. A copy of any such order shall be published in the Gazette.” [9] The definition of a “vexatious litigant: was dealt with by the Court of Appeal in SIM KOOI SOON v. MALAYSIA AIRLINES SYSTEM (NO.2) [2010] 2 MLRA 730 where Abdul Malik Ishak JCA held as follows: [1] What is the hallmark of a vexatious litigant? The claimant who sues the same party repeatedly in reliance on essentially the same cause of action, perhaps with minor variations, is terms as a vexatious litigant. [2] And a vexatious proceeding is one where the vexatious litigant had little or no basis in law and its effect was to subject the opposing party to inconvenience. [10] Similarly, the Court of Appeal in TAN BOON HUAT v TAN BOON LEE [2017] 5 MLRAU 540 held: [25]…The provisions in paragraph 17, clearly reveals and envisages 3 important limbs that must be fulfilled before the additional powers of the High Court and be invoked and these are-i. there must be a habitual and persistent legal proceedings filed in court; ii. the legal proceedings were instituted without reasonable cause; and iii. the legal proceedings were vexatious. Court’s Analysis and Findings [11] At the hearing of the OS on 4.4.2024, the Defendant had already discharged his solicitors and opted to represent himself. Notwithstanding so, the Defendant was allowed to advance further submissions for the Court’s consideration whereby he duly submitted by way of a supplemental written submission that the reliefs sought by the Plaintiffs in the present OS is no longer necessary given the fact that the Property has been duly auctioned off. [12] Having heard the Defendant, this Court proceeded to ask the Defendant if his above submission that since the Property concerned had been auctioned off means that he will no longer be filing and further actions against the Plaintiff herein in respect of the said Charge and the Property. Regrettably, the Defendant answered that he will seek legal advice as to his next course of action. [13] Whilst the Defendant is indeed entitled to seek legal advice on his next course of action, this Court also takes the view that the interest of the Plaintiff must be protected from having to go through the same nightmare all over again akin to having the sword of Damocles hovering over their heads endlessly. [14] Given my earlier findings in dismissing the 2020 Writ, it is this Courts conclusion that the Defendant is indeed a vexatious litigant. This Court hereby grants the reliefs sought for by the Plaintiffs as per prayed for at paragraphs “a to f” of Enc. 1 herein. Conclusion [15] In view of the contested nature of the application before me, this Court takes the view that an award of RM3,000-00 is reasonable towards costs of proceedings. I order so accordingly. Dated 20th June 2024, ………………………………….. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff: Tetuan Alex Keong & Co Advocates 7 Solicitors, 21, Jalan Bunga Anggerik 1, Dataran Ukay, 68000 Ampang, Selangor [Ref: CKC/MB/L/20800/AK] Solicitors for Defendant: Tetuan Arnold Andrew & Co Level 6 (Right Wing), Menara Liberty, No. 1008, Jalan Sultan Ismail, 50250 Kuala Lumpur. [Ref: AA/KUL/LIT/MB/CKC/1951/2020/FAZ]