Ng Ek Hock@ Ooi Ek Hock v See Thoo Seng Fook@soo Tho Seng Fook (WA-37J-35-05/2023)

NG EK HOCK @ OOI EK HOCK [NO KP: 470818-08-5597, Pentadbir Sah kepada 10 Harta Pusaka Soo Too Peg Chan, Si Mati]

LIONEL NG KWOK SHEUN (NO KP:780619-10-5771) 15

CLARA NG SIAO TING (NO KP:860808-56-5160) …PEMIUTANG PENGHAKIMAN

SEE THOO SENG FOOK@ SOO THO SENG FOOK

SOO TOO THIAM FOOK [Rockwills Trustee Berhad dilantik sebagai wasi/executor]

PENTADBIR PEJABAT DAERAH DAN TANAH, HULU LANGAT 30 … PENGHUTANG PENGHAKIMAN JUDGMENT (Appeal to Judge in Chambers – L.21) 35 INTRODUCTION [1]

Dissatisfied with the decision of the learned Senior Assistant Registrar (SAR) on 29.08.2023 dismissing the Judgment Debtor 40 20/06/2024 13:58:30 Kand. 51 S/N G7zdxr6D60m40KN1f/cmoA Summons (JDS) dated 03.05.2023 on the ground of res judicata is appealing the said decision to the Judge in Chambers against it under O.56(1) RC 2012 for a rehearing of the said matter citing: Milik Perusahaan Sdn Bhd & Anor v Kembang Masyur Sdn Bhd [2003] 1 MLJ 6, CA; Seloga Jaya Sdn Bhd v 45 Pembenaan Keng Ting [1994] 2 CLJ 716, SC; Jamaludin Jaafar v Affin bank Bhd & Anor Appeal [2018] 5 MLRA 109, CA. [2] On 29.04.2024, after duly considering the cause papers and 50 arguments by the respective learned counsels, I found no appealable error in the learned SAR’s decision. Consequently, I determined that appellate intervention is not warranted, and L.21 is dismissed with costs of RM3,000.00 payable within 30 days from the date hereof. 55 [3] Aggrieved, the JC appealed my decision, and my reasons are as follows: BRIEF FACTS [4] The facts can be summarised as follows: 60 4.1 The first JC (JC1) is the father of the second JC (JC2) and third JC (JC3).

4.2 In December 2013:

The JC filed a suit against the first and second Judgment Debtors (JD1 and JD2) in the Kuala Lumpur High Court vide Suit No. 21NCVC-89-12/2013 (Suit). 65 S/N G7zdxr6D60m40KN1f/cmoA

After a full trial, the High Court awarded a final judgment in favour of the JC and held JD1 and JD2 liable for fraud and conspiracy against the JC1 and JC2 and ordered that a Registrar assess the quantum of damages (encl.2: exh. N-1). 70 4.3 On 22.12.2015, the Registrar assessed the damages (encl.2: exh. N-2):

Dissatisfied with the Registrar’s Order, the JC appealed to the Judge in Chambers.

On 14.04.2016, the learned High Court Judge set aside the entire Registrar’s Order and granted the JC damages of RM500,000.00 75 subject to 5% interest p.a. full settlement (encl.2: exh. N-3).

4.4 On 22.3.2016:

JD2 passed away on 22.03.2016 (encl.2: exh. N-4).

The management of his estate was entrusted to Rockwills Trustee Berhad (RTB) as its sole executor, Grant of Probate dated 80 30.06.2016 (encl.7: exh. LMS-1).

The JC alleged that JD2 has a surplus of assets and, through their solicitor, had approached RTB to settle the judgment debt as ordered by the High Court but to no avail.

4.5 The RTB averred that in its capacity as executor of JD2, RTB had on 85 numerous occasions repeatedly informed JC that there were insufficient funds in JD2’s estate to settle the deceased’s Judgment debt in full and more time was required to liquidate JD2’s immovable properties which are unattractive to potential purchasers. S/N G7zdxr6D60m40KN1f/cmoA THE JUDGMENT DEBTOR SUMMONS (JDS) 90 [5] FIRST JDS (JDS-1) AGAINST RTB (WA-37J-29-12/2016)

5.1 The JC filed JDS via WA-37J-29-12/2016 against RTB:

On 14.05.2018, after the hearing, the learned SAR had ordered that JD2 was only liable to pay half of the judgment debt under the Judge’s Assessment Order, amounting to RM292,000.00 and 95 RM1500.00 costs (BOD L.6: pg. 88/PDF pg. 92).

The JC elected not to appeal the decision of the JDS-1, rendering it final conclusive between the parties.

Partial settlement of judgment debt:

The JC acknowledged they had received payment of RM120,000.00 100 from RTB as follows:

On 16.04.2019: RM70,000.00, and

(ii) On 02.06.20:RM50,000.00.

The facts from RTB showed they managed to pay the sum of 105 RM120,000.00 after successfully disposing of some of the properties in JD2’s estates. Efforts are continuing to meet the JDS-1 ordered amount of RM292,000.00, which remained binding between JC and RTB/JD2 110 5.2 SECOND JDS AGAINST RTB (JDS-2) (WA-37J-35-05/2023)

On 03.05.2023, the JC filed the present JDS constituting a second JDS via WA-37J-35-05/2023 against RTB, claiming that RTB to pay the Judgment Debt dated 14.04.2016 for RM500,000.00 (whole judgment sum) plus 5% interest until full realisation and 115 S/N G7zdxr6D60m40KN1f/cmoA cost of RM75,000.00 from three previous proceedings, which debt as at 05.05.2023 stands at RM626,698.07.

In its affidavit in support (L.2), the JC had, among other things, alleged that: -

RTB had failed to provide and/or hide the details and information about 120 the disposal of JD2’s estate.

(ii) RTB refused to cooperate with JC for the repayment of JD2’s Judgment Debt to JC and

(iii) JD2 should be liable for the Full Judgment Sum granted under the Judge’s Assessment Order.

Decision of the learned SAR: On 29.08.2023, the learned SAR dismissed the JDS-2 because it infringed the principle of res judicata and abused the Court process.

The JC appealed against the decision of the said learned SAR in dismissing the JDS-2 dated 03.05.2023 on the ground of res judicata. 135 SUBMISSIONS BY THE PARTIES [6] The JC argued, amongst other things, that:

6.1 (1) The SAR did not provide her detailed grounds but merely ruled that the JDS filed by the JC was dismissed on the grounds of Res Judicata. Therefore, the decision is unsupported by any legal 140 authority/law and should not carry any weight.

The SAR erred in deciding that no further JDS could be issued against RTB on the grounds of Res Judicata. S/N G7zdxr6D60m40KN1f/cmoA

There is no prohibition to restrict the JC from filing multiple JDS 145 against RTB.

On 02.12.2022, leave was granted for the JC to proceed against the RTB after the expiry of 6 years from the original Judgment dated 14.04.2016 (BOD L.26: PDF/Pg 258-260).

The JC was entitled to file the fresh JDS merely to examine the JD’s ability to satisfy the Judgment Debt given the recent sale of 3 properties belonging to the JD2’s estate. 155

This JDS2 is for the Court to orally examine the officer from RTB on its ability to pay the Judgement Debt out of the liquid assets of the estate of the JD2.

Section 4 of the Debtor’s Act 1957 speaks about the ability of the 160 JD to satisfy the Judgment Debt.

It was alleged by the JC that the Director of RTB, Ms Lee Shet Mei, in her affidavit Mei affirmed on 01.06.2023, does not wish to be orally examined but has filed inaccurate reports through her 165 affidavit, which only disclosed some parts of the available funds in the estate.

The estate of JD2 cannot be deemed or taken to be insolvent when there are five unsold properties and RM290,000.00 held in 170 reserve. The High Court must approve RTB’s fees. Therefore, Ms Lee Shet Mei must be examined on the affairs of the estate of JD2. The JC need to be informed of the complete cash position in S/N G7zdxr6D60m40KN1f/cmoA the impugned estate, and the exact executor account needs to be disclosed before the Court: Section 15(1) of the Trustees 175 (Incorporation) Act 1952.

RTB’s position is that the currently available funds in this estate cannot be paid out but must be kept and preserved for RTB’s fees, which is legally untenable. The JC judgment debt has priority over 180 the assets of the estate of JD2 and not RTB.

By not paying the judgment sums from the assets of the estate of JD2, RTB commits a Criminal breach of Trust under section 405 of the Penal Code, punishable under section 406. The inaccurate 185 details of the affidavit of Ms Lee Shet Mei for RTB can amount to an offence of perjury under section 191 of the Penal Code and for fabricating false evidence under section 192, all punishable under section 193. 190

There is something extremely fishy about the way RTB administers the estate of JD2. They have only paid out small monies but refuse to settle the entire judgment sum. They are responsible and accountable for the administration of the impugned estate: Section 6 of the Trustee (Incorporation) Act 195 1952. In these circumstances, JC prays that the appeal is allowed, and that the decision of the learned SAR is set aside. 200 S/N G7zdxr6D60m40KN1f/cmoA

6.2 In opposing, the RTB/JD2 argued, among others, that:

The present JDS-2 is an abuse of the court process. Since the conclusion of JDS-1, JC has full knowledge of JD2's estate ability (or the lack thereof) to pay the judgment debt:

The filing of a JDS is merely to determine the JD2's ability to satisfy the judgment debt that had been accomplished in the JDS1, with an order that had been rendered final and conclusive between the parties by the fact that the JC did not appeal to challenge the decision of the learned SAR in the JDS-1.

During the JDS-1, the JC had been apprised fully of the financial ability of JD2 to meet the judgment sum before the Court ordered JD2 to pay RM292,000.00 of the judgment sum. This order remains binding and effective between the parties.

In the circumstances, there is no justification for the JC to file JDS-2 over 215 the similar issue of the affordability of the estate of JD2 to pay the entire judgment sum.

Via JDS-2, the JC is attempting to claim the entire judgment sum against the estate of JD2 contrary to the order in the JDS-1 that has not been stayed, varied or set aside.

To allow it would constitute an abuse of process.

In JDS-1, the learned SAR had clearly ordered that JD2 was only liable to pay RM 292,000.00 (inclusive of the cost and interest) (which is precisely half of the damages granted via the Judge's 225 Assessment Order (JDS-1 decision) that was never appealed.

Once the SAR in JDS-1 had decided that JD2 was only liable to pay half of the Full Judgment Sum, JC was no longer entitled to fall back on the initial Full Judgment Sum found in the Judge's 230 Assessment Order. The JDS-1 decision had effectively varied and or modified the Full Judgment Sum: Mohd Kamal Omar v. United Overseas Bank (M) Bhd & Others [2018] 5 CLJ 65718 FC that an instalment payment plan for the satisfaction of the original S/N G7zdxr6D60m40KN1f/cmoA judgment sum made by the JD and agreed to by the JC constitute 235 a modification of the original judgment. Therefore, the original judgment had been varied or modified to the extent that a Bankruptcy Notice founded on the original amount is thereby invalidated. 240

JC is estopped by res judicata.

The JC's present conduct in attempting to claim for the entire Full Judgment Sum is an attempt to reopen and relitigate a matter which was heard and culminated in the JDS-1 decision.

The JC did not appeal and is therefore estopped from alleging that JD2 should be fully responsible for the entire Full Judgment Sum based on the doctrine of Res Judicata: Asia Commercial Finance (M) Berhad v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 250 21, SC, that observed once a matter in dispute was heard and decided by a competent court, the litigating parties are barred and estopped by res judicata to re-litigate or reopen the same issue. The Federal Court in Syarikat Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 2 MLJ 689, FC, observed 255 that where no appeal was lodged to challenge the decision of a Court, res judicata would step in to bar a party from disputing the impugned decision.

The estate of the JD2 also argued that the computation of 260 indebtedness by the JC was erroneous (encl.32 Annexure B, pp.38-41) by including: S/N G7zdxr6D60m40KN1f/cmoA

Interest upon interest: s.11 Civil Law Act 1956.

Interest on costs.

It included costs granted by the learned SAR that the learned High 265 Court Judge had already set aside.

Claiming for interest accrued for over six years: Perwira Affin Bank Berhad v Lim Ah Hee @ Sim Ah Hee [2004] 3 MLJ 253, FC.

Contrary to the allegations of the JC, they had been duly apprised 270 of the status of the solvency of the estate of JD2 by RTB and the difficulty of liquidating the immovable assets due to the location, market conditions, and multiple registered owners. The current status of the estate of JD2 remained insolvent, being unable to meet its financial obligations. The test of solvency has always 275 been the debtor’s ability to pay his debts as they become due: Affin Bank Bhd v Abu Bakar Ismail [2020] 3 CLJ 729, FC. Despite the reserved fund of the estate and the immovable assets, the estate of JD2 is still unable to pay the balance judgment debt as ordered in the JDS1. The remaining properties in the estate still 280 require continuous maintenance, while the available cash in the estate is necessary for:

To pay the costs and expenses of the ongoing administration of the estate.

maintenance and reparation costs of the remaining immovable 285 properties.

To appoint property agents to dispose of the remaining immovable properties.

The appointment of valuer and auctioneer.

Advertisement fees for the immovable properties.

Appointment of professionals such as solicitors to attend to the SPA and the transfers of the remaining immovable properties and

All other expenses which are reasonably expected and or required for the disposal of the remaining immovable properties in the estate of JD2. 295

If all the remaining cash balances are used to pay the JC, the administration of the estate of JD2 will come to a halt. The JC’s argument that they are entitled to priority of having their debts paid before others is highly erroneous. It is trite law that the settlement of administration fees and expenses (including but not limited to 300 RTB’s executor’s fees) are given priority over the judgment debt of the JC: Section 69(1); First Schedule of the Probate and Administration Act 1959. It is a fact that the present executor’s fees chargeable by RTB were previously agreed to between JD2 and RTB before his demise. It is an agreed fee. Contrary to the 305 arguments of the JC, an agreed fee does not require the approval of the Court. Before its appointment, JD2 and RTB had, via clause 2 of the Will of JD2 dated 11.11.2014, agreed upon the fees and expenses chargeable by RTB. In addition, a trustee is entitled to his fees as agreed upon: Ramesh @ Muthu Nallayan v 310 Marappan Muthusamy [2021] 1 LNS 779, HC. This is further reinforced by section 8(1) of the Trust Companies Act 1949.

In an attempt to settle the balance judgment debt, RTB, in a previous written communication, proposed to transfer a property 315 of JD2 in Taman Tasik Selatan valued at RM310,000.00 as a full and final settlement. However, the JC refused this offer and instead filed this JDS-2. It is important to note that seeking a financial settlement at this stage regarding the status of the estate of JD2 is not feasible. 320 S/N G7zdxr6D60m40KN1f/cmoA

At the start of the JDS-2 proceeding, parties agreed before the learned SAR during the case management on 20.06.2023 to exhaust their arguments via the exchange of affidavits. Claiming they were not granted the right to examine the deponent of the 325 RTB’s affidavit is untenable: Orion Tower Sdn Bhd v Shanghai City Sdn Bhd [2023] 8 MLJ 345. At this stage I wish to state that the JC cannot change to what that they have agreed to. And solicitors are first and foremost the officers of the court before they are the protectors of the interest of their respective client. The 330 Federal Court in Tindak Murni Sdn Bhd v Juang Setia Sdn Bhd & Another Appeal [2020] 3 MLJ 545, observed that advocates and solicitors are officers of the Court. Their overriding duty is to the Court, not their clients. They must provide honest and complete submissions. Integrity is of the utmost importance in 335 advocacy, written or oral.

The JC, in their submissions, had raised unpleaded and unsupported issues from the Bar that must be dismissed outright as an abuse of process: Chua Liong Hai & Ors v Lian 340 Soon Industries [2004] CLJ 117:

Allegation of Criminal breach of Trust and Perjury (s.405 and s.406 PC) against RTB.

The previous and present solicitors acting for RTB assisted RTB in filing affidavits containing inaccurate and or false information.

The corporate representative of RTB should be called to explain the developments in the realisation of the assets in the estate of JD2. At all times, RTB had diligently administered the estate of JD2 and duly disclosed all details on the estate to the JC, the cash in hand, 350 S/N G7zdxr6D60m40KN1f/cmoA and the remainder of the immovable assets of the impugned estate. The allegation of undisclosed cash of RM280,000.00 in the deceased's estate is not only actuated by malice but untenable, as explained by RTB (encl.34 submission, at paragraphs 61-70). 355

The learned SAR:

In dismissing the JDS-2, she did not merely make a bare decision without assigning any reason for her decision.

It was stated in the minutes of her decision that after considering the cause papers and parties' submissions (consisting of legal authorities 360 and statutory provisions), she decided to dismiss JDS-2 on abuse of the Court’s process and is barred by res judicata.

Due weight must be given to the learned SAR’s decision.

It was dismissed because the JC attempted to reopen and relitigate the decision of the learned SAR in the JDS-1, which was final and 365 conclusive between the parties. A decision that was not appealed, varied, stayed or revoked till today.

Legal cognisance must be taken that the JC herein is merely appealing and arguing on the issue of res judicata only and never addressed the finding of abuse of Court by the learned SAR. It is a tacit acceptance 370 that JDS2 is an abuse of process. In these circumstances, JD2/RTB prays that the appeal be dismissed with costs. 375 THE LAW [7] Appeal to Judge in Chambers: O.56(1) RC 2012 Appeals from certain decisions of Registrar of the High Court to a Judge in

An appeal shall lie to a Judge in Chambers from any judgment, order or decision of the Registrar of the High Court.

appeal shall be brought by serving on every other party to the proceedings in which the judgment, order or decision was given or made a notice in Form 114 to attend before the Judge on a day specified in the notice.

Unless the Court otherwise orders, the notice shall be filed within fourteen days after the judgment, order, or decision appealed against was given or made and shall be served not less than five days before the date fixed for the hearing of the appeal. S/N G7zdxr6D60m40KN1f/cmoA

At the hearing of the appeal, fresh evidence shall not be admitted unless 390 the Judge is satisfied that—

at the hearing before the Registrar, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available, and

the fresh evidence, if true, would have had or would have been likely to have 395 had a determining influence upon the decision of the Registrar.

Except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought. 400 7.1 The principle governing an appeal to a judge in chambers was decided by the Federal Court case of Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd. [1996] 1 MLJ 30 held that- "In appeals to a judge in chambers from the decision of a registrar of the High Court, the judge is not exercising appellate jurisdiction in the same sense as when 405 he hears appeals from judgments, decisions or orders of the subordinate courts. The appeals from the registrar's decisions are through an actual rehearing, and the judge treats the matter as though it has come before him for the first time. Therefore, the judge is not confined to the points taken before the registrar, so the rule about new points not generally open to an appellant to take on appeal does 410 not apply.". [8] Res Judicata in brief 8.1 Section 25(2) of the Court of Judicature Act 1964, read with the 415 Schedule, empowers the Court to dismiss proceedings where the matter in question is res judicata between the parties. Among the cases are:

8.2 Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995]

When a court of competent jurisdiction has adjudicated a matter between two parties, they and their privies are not permitted to litigate the res judicata once more, as the Judgment becomes the truth between such parties.

As a result, an estoppel per rem judicatum has been created.

Issue estoppel prevents the correctness of a final judgment by the same 425 parties in a subsequent proceeding from being contradicted.

The court has an inherent jurisdiction to dismiss an action by applying the doctrine of res judicata, which is estoppel based on public policy, even if it has not been pleaded, as public policy requires that there should be finality in litigation. 430

8.3 The Federal Court in Syarikat Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 3 CLJ 157, FC, ruled that: "[34] Firstly, on the issue of res judicata, it is necessary to reiterate the elements which constitute res judicata. For this purpose, we find the book Spencer 435 Bower and Turner, Res Judicata, 3rd edn. (1996) particularly useful. There, the learned authors set out on p. 10, para 19 what is involved in the burden of showing res judicata, which consists of six matters:

The decision was judicial in the relevant sense.

(ii) It was, in fact, pronounced.

(iii) the tribunal had jurisdiction over the parties and the subject matter.

(iv) The decision was - (a) final and (b) on the merits.

It determined the same questions as that raised in the latter question.

(vi) The parties to the latter litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem. " 445 EXAMINATION OF A JUDGMENT DEBTOR (JD) UNDER THE JUDGMENT DEBTOR SUMMONS (JDS) [s.4(1) Debtors Act 1957] 450 [9] Order for examination of judgment debtor (O.48 r.1 RHC 2012)

In this Order, “the Registrar” means the Registrar of the High Court or Sessions Court Judge or Magistrate.

Where a person has obtained a judgment or order for the payment of money by some other person (who is referred to as “the judgment debtor” in this 455 Order), the Court may, on an application made ex parte by a notice of application supported by an affidavit in Form 95 by the person entitled to enforce the judgment or order, order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar, and be orally examined on the questions— 460

whether any and, if so, what debt is owing to the judgment debtor; and

whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order, and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the 465 questions aforesaid at the time and place appointed for the examination.

An order under this rule shall be in Form 96. It must be served personally on the judgment debtor and on any officer of a corporate body ordered to attend for examination.

Any difficulty arising in the course of an examination under this rule before 470 the Registrar, including any dispute with respect to the obligation of the person being examined to answer any question put to him, may be referred to the Court and the Court may determine it or give such directions for determining it as it thinks fit. 475 9.1 JDS in a nutshell:

O.48 RHC 2012 is intended to provide a process for examining the judgment debtor to gather information on his means of paying the judgment and flowing from it. The judgment creditor will be able to determine the appropriate mode of enforcement: Kwek 480 Seow Kee & Anor v KT Packaging Sdn Bhd (No 2) [1998] 3 CLJ Supp 244, HC.

The procedure of examination of a judgment debtor is not execution.

Primarily, when examining a judgment debtor, the debtor is to be 485 examined, respecting his ability to pay the judgment debt and for the discovery of property available for execution.

A judgment creditor may subpoena as a witness any person whom he considers likely to be able to supply information respecting the judgment debtor’s ability to pay the judgment debt or respecting 490 his property (Debtors Act 1957 (Act 256), s 4(3)).

A judgment debtor who fails to attend court for such examination after being served with the order requiring his attendance in court may be arrested and brought before the court for such examination. 495 S/N G7zdxr6D60m40KN1f/cmoA

A judgment debtor who defaults in complying with an order for payment of the judgment debt by a date stipulated by the court on the examination of the judgment debtor may be committed to civil prison if it can be shown that he defaulted notwithstanding that he had sufficient means to comply with the order between the date of 500 the order directing payment and the date of payment: Debtors Act 1957 (Act 256), s 4(9)).

The purpose of a JDS is to discover the means of a JD and the affordability to satisfy the judgment sum: Nakano (Malaysia)Sdn Bhd v oriental Wealth (M) Sdn Bhd [2000] MLJU 435 505 FINDINGS [10] In this appeal:

10.1 The main issue is whether the findings of the learned SAR in dismissing the JDS2 are correct and sustainable. Gathered from the 510 arguments and pleadings relied upon by the JC, the principal grounds relied on by the JC are:

The submitted that the decision of the learned SAR was merely a bare decision, and thus no weight shall be given; and

The learned SAR had made a wrong finding of law to strike out 515 the said JDS2 based on the principle of Res Judicata premised on the previously filed and decided JDS1.

10.2 I refer to the circular: Pekeliling Pendaftar Bil.1 Tahun 1999, Penyediaan Alasan 520 Penghakiman Bagi Rayuan di dalam Kamar at para 2, which stated that “Penyediaan alasan penghakiman dibuat secara ringkas dan padat” [emphasis added]

10.3 The minutes showed that the learned SAR in dismissing the JDS-2 on 525 29.08.2023 said: “Setelah membaca dan meneliti kertas-kertas kausa dan hujahan-hujahan bertulis yang telah difailkan dan setelah mendengar peguamcara-peguamcara bagi Pemiutang Penghakiman dan Penghutang Penghakiman Ke-2, Mahkamah bersetuju dengan hujahan Penghutang Penghakiman Ke-2 antara lain, berkenaan 530 dengan penyalahgunaan proses Mahkamah dan terpakainya prinsip res judicata dalam kes di sini. Oleh itu, Mahkamah memutuskan untuk menolak Kand.1 dengan kos sebanyak RM 3,000.00 kepada Penghutang Penghakiman ke-2.” 535 10.4 It is my considered view that the learned SAR had stated in the brief judgment that she had referred to the cause papers and submissions by the parties. She finds that there is an abuse of the court process, and the principle of res judicata applies. She dismissed the said JDS-2 with costs of RM3,000.00 to be paid to JD2. This, in my view, 540 reflects the gist of her findings on the JDS-2, which satisfies the requirement of “ringkas dan padat”. The learned SAR had complied with the Pekeliling Pendaftar Bil.1 Tahun 1999, where the SAR must write a brief and comprehensive judgment to which this Court should give weight. 545 [11] From the facts:

11.1 The JDS-2 is to enforce the judgment obtained on 14.04.2016.

The JC applied on 02.12.2022 for ex-parte leave to enforce the judgment via JDS after the expiry of six (6) years.

Leave to abridge time in allowing the JC to enforce the judgment was allowed by the High Court.

The JC filed JDS-1 via WA-37J-29-12/2016 against RTB.

The learned SAR on 14.05.2018 ordered that JD2/RTB was only liable to pay for half of the judgment debt under the Judge’s 555 S/N G7zdxr6D60m40KN1f/cmoA Assessment Order amounting to RM 292,000.00 and cost RM1500.00.

The JC did not appeal the said decision in JDS-1.

The JC took the position that if the principle of Res Judicata truly applied to JDS, then leave would not have been granted, but they 560 admitted that there is no authority on this point.

The Federal Court in Syarikat Sebati Sdn Bhd v. Pengarah Jabatan Perhutanan & Anor [2019] 2 MLJ 689 ruled that when there was no appeal against a decision, the party to that action will be estopped by Res Judicata of disputing that decision.

Since the JC elected not to appeal the decision of the learned SAR in JDS-1, they are now barred by res judicata, and the JC is now precluded from re-ventilating the issue in the present appeal in chambers concerning the JDS-2.

In JDS-1, the learned SAR has decided that JD2 is only liable to 570 half of the judgment sum, i.e. RM292,000.00 to be paid to the JC within six months from 14.05.2018. If the JD2 fails to settle the amount within the said six months, then JC has the right to file a notice to show cause. Nothing in the record indicates that JC had complied with the directions when JD2 failed to fully pay the 575 RM292,000.00.

11.2 RTB acted on the said JDS-1 Order when payments were made to the JC on 16.04.2019 for RM70,000.00 and 02.06.20 for RM50,000.00:

In the present JDS-2, the JC sought to recover the entire judgment 580 sum in the Judge’s Assessment Order, but RTB argued that the JC could not do so because the JDS-1 had effectively varied S/N G7zdxr6D60m40KN1f/cmoA and/or modified the Full Judgment Sum in the Judge's Assessment Order.

The Federal Court in Mohd Kamal Omar v. United Overseas 585 Bank (M) Bhd & Others [2018] 5 CLJ 657, FC ruled that satisfaction of an original judgment by payment of instalments constitutes a variation or modification of the said original judgment, thereby barring the presentation of a bankruptcy notice founded on the original judgment.

I agree that once the learned SAR in JDS-1 had decided that JD2 was only liable to pay half of the Full Judgment Sum, JC are no longer entitled to fall back on the initial Full Judgment Sum, because the JDS-1 had effectively varied and/or modified the Full Judgment Sum in the Judge's Assessment Order. 595 [12] I also take cognisance that:

The JC only filed the present appeal against the learned SAR’s decision regarding the issue of res judicata.

I decided that, in the circumstances of the case, res judicata applies in this JDS2 and the learned SAR rightly dismissed it.

I agree with the submission by RTB that legal cognisance must be taken that the JC herein is merely appealing and arguing on the issue of res judicata only and never addressed the finding of abuse of Court by the learned SAR. It is a tacit acceptance that JDS-2 is an abuse of process. 605 However, for completeness, I will also address whether the JDS-2 is indeed an abuse of process:

As I have mentioned above, I find that the JC is applying to recover the whole judgment sum of RM500,000.00 as stated in the order in 2016.

It is a fact that RTB made two payments after the SAR decided in 610 JDS-1 that JD2 is only liable to pay half of the judgment sum, i.e. RM292,000.00. There is still an outstanding balance due.

I believe that the JDS-2 is an abuse of process because the purpose of JDS is to inquire about the ability of JD2 to pay its obligations under the said judgment, which was done via JDS-1.

That Order has not been stayed, varied or set aside by the JC. It remains binding and effective between the parties.

Part payment had been made under the JDS-1 Order.

Instead of proceeding with notice to show cause as stated in the JDS-1 Order, the JC has filed the present JDS-2, claiming the total sum, 620 despite the decision of the learned SAR in JDS-1. [13] The records showed that the JC:

Filed a Bankruptcy Notice against the JD1 dated 08.11.2021 (BA- 29NCC-1593-04/2020).

A Bankruptcy Order was granted against JD1 (encl.2: exh. N-14).

Consequently, the JC is now entirely focused on the impugned estate of JD2 to attempt to recover the entire judgment sum.

However, by the JDS-1 Order, the estate of JD2 is only liable to pay RM292,000.00, of which RM120,000 had been paid.

Under the present JDS-2 application, it is clear that the JC is seeking to recover the entire judgment sum from the impugned estate contrary to the JDS-1 Order that had not been stayed, varied or set aside. It remains binding between the parties.

I find this an abuse of process.

I agree that if the JC is allowed to file multiple successive JDS whenever they disagree and wish to change the decision of the Registrars, then the JC would be free to engage in forum shopping until they have obtained a favourable decision. 640 S/N G7zdxr6D60m40KN1f/cmoA [14] THE ROCKWILLS TRUSTEE BERHAD’S (RTB) FEES. Clause 2 of JD2’s will (11.11.2014) stipulate: “I appoint my Executor Rockwills Trustee Berhad (Company No.708932-T). The conditions on which Rockwills Trustee Berhad (Company No.708932) acts as 645 Executor shall be based on the terms last published before the date of this Will, and Rockwills Trustee Berhad (Company No.708932-T) shall be remunerated in accordance with the scale of fees current at my death as varied from time to time during the administration of any trust arising under this Will.”

Section 8 (1) of the Trust Companies Act 1949 provides that RTB 650 is entitled to their fees and/or remuneration to receive and collect such remuneration for its services as is agreed upon or as fixed or allowed from time to time by law and all usual and customary charges, costs and expenses.

In the present case, since JD2 has agreed that RTB shall be 655 reimbursed in accordance with the scale of fees as varied from time to time, the issue of the Court’s prior approval does not arise, contrary to the assertion of the JC. [15] In the circumstances of the case:

The arguments by the JC that RTB’s fees are subject to the 660 Court’s approval is a non-starter.

RTD has rightly pointed out that the JC’s assertion that their judgment debt takes priority over the others in the impugned estate has proven to be unsustainable, by Section 6(1) of the Probate and Administration Act 1959, read together with the First 665 Schedule, Part 1 of the said Act. S/N G7zdxr6D60m40KN1f/cmoA

It stipulates that the administrator's fees and expenses shall be prioritised over the judgment debt owing to JC.

It is unrefuted that the fees constitute agreed fees between JD2 and RTB under clause 2 of his Will dated 11.11.2014. 670 [16] It is also unrefuted:

RTB was able to dispose of three of the five properties of JD2 and has in their account RM278,473.24 (encl.7: affidavit at para 16)

I agree with the position taken by RTB that the amount is to cover all other relevant expenses that are bound to be incurred by RTB 675 in maintaining and/or administrating the remaining two immovable properties held under the estate of JD2 pending its disposal. Fees for (including but not limited to) auctioneer fees, fair wear and tear, management fees for the properties (under Strata title), Quit Rent and Assessment, all the utility bills and valuer fees (for RTB to 680 obtain the current and/or latest value for the remainder immovable properties) and fees to clean up and/or maintain the immovable properties to increase the chances in disposing and/or liquidating the immovable properties. Otherwise, the administration of the impugned estate would indeed come to a halt that would not serve 685 anyone’s interests. 690 S/N G7zdxr6D60m40KN1f/cmoA CONCLUSION [17] All things considered:

17.1 By and large, I find no appealable error in the learned SAR’s decision to dismiss JDS2.

17.2 Consequently, appellate intervention is not warranted, and the 695 decision of the learned SAR is affirmed.

17.3 Enclosure 21 is dismissed with costs of RM3,000.00, payable within 30 days. 700 Dated 20.06.2024 705 HAYATUL AKMAL ABDUL AZIZ JUDGE HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR 710 Parties: 715 Cedric Nigel Miranda together with Lina a/p Paramasweran Messrs Cedric Miranda & Co. Counsels for the Judgment Creditor Amos Ho Chern Wey together with Matt Lee Kian Yan and 720 Gavrie Ang Qai Zen Messrs Amos Ho, Sew & Kiew