P Tree Holding Sdn. Bhd. v 1. ) Jps Holdings Sdn. Bhd. (WA-22NCvC-251-04/2025)

JPS HOLDINGS SDN. BHD. (Company Registration No.: 620456-A)

PH 385 SDN. BHD. (Company Registration No.: 1200473-W) ...DEFENDANTS GROUNDS OF JUDGMENT Preliminary [1] Two applications are before the court. Enclosure 10 refers to the first defendant's application to strike out the plaintiff's claim under Order 18 rule 19 of the Rules of Court 2012 ("ROC 2012"), while Enclosure 12 refers to the second defendant's application of the same nature. [2] As similar issues have already been litigated up to the Federal Court, the defendants claim that res judicata applies to this case. [3] In opposition to these applications, the plaintiff argues that res judicata does not apply because the circumstances have changed since the previous cause of action. Case facts: an overview [4] On 19 June 2017, a Sale and Purchase Agreement ("SPA") was signed by the plaintiff and the first defendant. It was the plaintiff's intention to purchase a hotel known as the M Three Hotel ("property") from the first defendant for RM95,000,000.00 ("purchase price"). [5] The plaintiff, however, failed to meet its obligations under the SPA, including the payment of the balance purchase price. [6] As part of the SPA, the following provisions are included:

The plaintiff had already paid the first defendant an earnest deposit of RM1,900,000.00 and was to make a further deposit of RM10,000.000.00 upon execution of the SPA;

There was a retention sum of RM2,850,000.00 payable by the plaintiff towards the settlement of Real Property Gains Tax;

The plaintiff was to pay the balance purchase price of RM80,250,000.00 by way of a first tranche of RM50,000,000.00 payable 30 days after receiving the redemption statement from the first defendant's financier, a second tranche of RM15,000,00.00 on or before 18 June 2018 and a third tranche of the balance purchase price by 18 June 2019;

An extension for completion could be obtained by the plaintiff by paying interest at a rate agreed upon with the first defendant; and

In the event that the plaintiff defaulted in payment of the balance purchase price, the first defendant was entitled to terminate the SPA in writing and to:

sell the property to a third party at a reasonable price within five (5) years from the date of the termination notice and to deduct from the reasonable price the balance purchase price together with late payment interest and to refund the excess sum to the plaintiff where for this purpose, the plaintiff was entitled to recommend a buyer to the first defendant to purchase the property or in the alternative, to forfeit 10% of the purchase price and to refund the balance monies paid by the plaintiff to the plaintiff within 14 days from the date of the termination notice and thereafter the first defendant would be entitled to dispose of the Property to a third party at its absolute discretion; and

(ii) If the plaintiff and the first defendant were unable to find a buyer for the property, further discussions would follow. [7] There was also a Management Agreement dated 1 July 2017 between the plaintiff and the first defendant regarding the management of the property pending the completion of the sale and purchase thereof. [8] Under the terms of the Management Agreement, the plaintiff received possession of the property on 1 July 2017. [9] As of 10 January 2018, the plaintiff had paid RM39,750,000.00 to the first defendant towards the purchase price of the Property. [10] As of the said date, RM55,250,000.00 was due and payable to the first defendant. [11] The plaintiff, however, failed to meet its obligations under the SPA, including the payment of the balance purchase price. [12] In a Supplemental Agreement dated 10 January 2018 ("SA"), the parties agreed to extend the due date for payment of the balance due under the SPA, amongst others. [13] As part of the SA, the following provisions are included:

The plaintiff was required to pay the remaining balance of RM55,250,000.00 to the agents of the first defendant in accordance with the terms thereof, to be applied to the redemption of the property, and to be released to the first defendant at the times as specified therein;

The termination clause under the SPA has been amended so that if the plaintiff defaults in paying the balance of RM55,250,000.00, the first defendant will be entitled to terminate the SPA and the SA by way of a written notice, whereupon:

From the date on which the termination notice is served, the first defendant will have five (5) years in which to sell the property at a reasonable price to a third party; or

(ii) Within five (5) years of the plaintiff returning vacant possession of the property to the first defendant, whichever occurs first;

(iii) Upon a successful sale of the property, the first defendant was entitled to deduct from the reasonable price the outstanding current balance, late payment interest, outgoings, costs, and expenses;

(iv) Within 30 days from the date the first defendant received the reasonable price, the excess would be released;

The first defendant was entitled, as an alternative to paragraphs (i) to (iv) above, to forfeit 20% of the purchase price and refund the remaining monies paid by the plaintiff free of interest within 30 days of the termination notice in exchange for delivering vacant possession of the property back to the first defendant; and

(vi) If the property was not sold, the parties were to enter into further discussions regarding the treatment of monies paid by the plaintiff and/or the second defendant to the first defendant. [14] A further sum of RM16,500,000.00 was paid by the plaintiff to the first defendant under the SA. [15] As a result, the plaintiff paid the first defendant RM56,250,000.00 in respect of the purchase of the property, leaving a balance of RM38,750,000.00 to be paid. [16] Due to the plaintiff's inability to meet the additional payments provided for in the SA, the first defendant terminated the SPA as provided in Clause 1.7(A) of the SA and terminated the Management Agreement by way of a letter dated 1 August 2018 ("Termination Notice"). [17] On 1 September 2018, the plaintiff returned vacant possession of the property to the first defendant. [18] A change of event then occurred. [19] It was agreed by the first defendant on 29 January 2019 that the Termination Notice would be rescinded, the SPA and Supplemental Agreement would be revived, and that the second defendant would replace the plaintiff as purchaser under the SPA and SA, provided a Deed of Novation Cum Variation was executed by the parties and subject to their terms. [20] Under the terms of the Deed of Novation Cum Variation dated 12 February 2019 ("DNCV"), the SPA and the SA were novated, whereby the second defendant replaced the plaintiff as purchaser. [21] The DNCV provided that the current balance of the purchase price then due to the first defendant was RM38,750,000.00. Here, RM56,250,000.00 had already been paid by the plaintiff to the first defendant in calculating the balance purchase price payable to the first defendant by the second defendant. [22] As far as the plaintiff is concerned, the DNCV was silent about the return of the sum of RM56,250,000.00 or any excess portion thereof in the event of the termination of the DNCV, SPA, and/or SA. [23] Despite these arrangements and agreements, the plaintiff commenced litigation against the first and second defendants at the Kuala Lumpur High Court with suit number WA-22NCvC-499 07/2019 ("Suit 499") seeking to rectify the DNCV. [24] In light of Suit 499's filing, the first defendant terminated the SPA and the SA on 6 February 2020. Court's analysis and findings [25] In support of their applications, the defendants argue that this action should be dismissed on the basis that it is res judicata. The reason is that a similar action has already been filed by the plaintiff and dealt with right up to the Federal Court under the same cause of action and with the same parties involved. [26] In this regard, the defendants argue that the facts set up by the plaintiff in this present action before this court revolve around the entry into the SPA, SA, and DNCV for the purchase of the property. [27] However, the defendants further argue that a similar cause of action had already been decided by another High Court in Suit 499, which had also been affirmed by the Court of Appeal. Moreover, the plaintiff had even been denied leave to appeal by the Federal Court. [28] On the basis of the following, the defendants contend that the plaintiff's initial relief in Suit 499 was a declaration that the SPA, SA, and DNCV were void, invalid, and of no effect. First, the plaintiff was unduly influenced by the first defendant into signing the SA, which was executed without their consent. Second, the first defendant altered clause 7.1 of the SPA in a way that was oppressive, unreasonable, unconscionable and unfair. Third, the plaintiff's board did not pass a resolution authorising it to execute the SA. Fourth, as for the SA, only clause 2 of the SA was supported with consideration. Fifth, there was no consideration for the DNCV. Finally, the SA and DNCV were supported by past consideration and/or insufficient consideration. [29] According to the defendants, the plaintiff amended its Statement of Claim in Suit 499 on 9 March 2019, seeking rectification of the DNCV and return of RM56,250,000.00. First, they claim the defendants breached implied terms in the DNCV by failing to return RM56,250,000.00 paid by the plaintiff. Second, the plaintiff argues that there had been a mutual mistake between the parties to include a provision in the DNCV requiring the plaintiff to return RM56,250,000.00, which means that the DNCV does not reflect the parties' true intentions and should be amended. In addition, the plaintiff raised the claim that the defendants have been unfairly enriched since the defendants were unable to justify their retention of the RM56,250,000.00 paid by the plaintiff. [30] Following the defendants' arguments in relation to Suit 499, the defendants now analyse the current suit before the court. According to the defendants, the causes of action here are similar to the causes of action in Suit 499. In the Statement of Claim before this court, the plaintiff asserted that the DNCV does not provide for the first defendant to retain the sum of RM56,250,000.00 paid by the plaintiff or for the excess to be released to the second defendant. Moreover, the plaintiff here asserts that no consideration was provided for the retention of RM56,250,000.00. Therefore, it is the plaintiff's claim that RM56,250,000.00 would be unjustly retained by the defendants. [31] According to the defendants, the plaintiff is taking such a position now simply because it has now contended that since the property has not been sold after the expiration of five years from the date of redelivery of vacant possession to the first defendant, the plaintiff is entitled, pursuant to clause 1.7(A), to claim for the excess of the sale of the property by the first defendant to any third party. As a result, the plaintiff requested a discussion with the first defendant about reimbursing the excess. This is how the current action came to be. [32] Accordingly, the defendants now assert that since Suit 499 dealt with similar facts and causes of action to those before this court, this action has become res judicata, and that issue estoppel barred the plaintiff from pursuing its claim further in this case. Because of this, the defendants argue that the plaintiff should not be allowed to relitigate the same causes of action and issues. [33] In opposing the two applications, the plaintiff asserts that the principle of res judicata does not apply. This is due to the fact that the SPA and SA have since been terminated by the first defendant. Comparatively, in the plaintiff's previous action, the SPA and SA were not terminated at the relevant time. [34] The plaintiff alleges that its claim now arises out of the claim for money had and received pursuant to clause 1.7(A) of the SA. The reason for this is that due to the termination of the SPA and SA by the first defendant, the first defendant was enriched in the amount of RM56,250,000.00 less permitted deductions. According to the plaintiff, the first defendant's enrichment was at the expense of the plaintiff, who paid the defendant that sum. Consequently, the plaintiff believes it is unjust for the first defendant to retain RM56,250,000.00 after terminating the SPA and SA against the second defendant. Thus, the plaintiff argues there is no defence available to the first defendant to limit or extinguish its responsibility to make restitution. [35] Furthermore, the plaintiff argues that Suit 499 is completely different from this current suit on the basis of the respective cause of action. In Suit 499 the plaintiff had initially initiated a legal action against the defendants to seek rectification of the DNCV on the grounds that the DNCV failed to provide or to seek return of the sum of RM56,250,000.00 or any excess portion thereof to the plaintiff in the event of a termination. [36] Further, the plaintiff claims that Suit 499 was filed prematurely on 16 July 2019 before termination of the SPA and SA. Therefore, it is the plaintiff's case now that the right to seek a refund for the sum of RM56,250,000.00 under clause 1.7(A) of the SA did not arise at the time Suit 499 was filed because it requires the termination of the SPA and SA in order for clause 1.7(A) of the SA to become operative. As such, the plaintiff forcefully argues that from a legal point of view, the plaintiff could not have properly sought any relief relating to clause 1.7(A) of the SA by way of Suit 499 because clause 1.7(A) was only enforceable after Suit 499 was filed on 6 February 2020. [37] According to the plaintiff further, the property was not sold within the five (5) years prescribed by clause 1.7(A) of the SA, so the parties had to engage in further discussions to resolve the treatment of the monies paid by the plaintiff or the second defendant to the first defendant, in which case the first defendant must refund the plaintiff RM56,250,000.00 (less permitted deductions). To this end, the plaintiff claims that since the first defendant has taken a position through its solicitor that it is not agreeable to attend the discussion and meeting for parties to determine the total sum of deduction and the timeline for the refund of the excess sum to the plaintiff, this action is well justified. [38] The above reflects the positions taken by the parties. [39] Pursuant thereto, the following is my analysis and findings on the issues posed by these two applications. [40] Despite its obviousness, I will start with Order 18 rule 19(1) of the ROC 2012, which states: Striking out pleadings and endorsements (O.18,r.19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. [41] As for these two (2) applications, it is trite law that the Court can only exercise its power under Order 18 rule 19(1) of the ROC 2012 when it is clearly evident that the claim is 'obviously unsustainable' (see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36). [42] Let me now discuss the issues between the parties. [43] To appreciate the issues raised by the parties herein, I must examine and analyse attentively the Grounds of Judgment of the learned judge in Suit 499. I pause here to note that my observations regarding the learned judge's decision will be included in my analysis below. [44] Having conducted this exercise, I am unable to make a positive determination that this matter is completely different from Suit 499. Here, there is a direct relationship between all of the issues raised by the plaintiff here and those raised by the plaintiff in Suit 499, for which the learned judge made extensive findings of fact and law. [45] Despite being aware of the plaintiff's arguments above, especially the plaintiff's position that this current action is justified to determine the status of the excess money now that the SPA and SA have been terminated, it is obvious that I cannot ignore the glaring fact that the learned judge also addressed this issue in Suit 499. More specifically, the learned judge held that the second defendant is entitled to any excess or benefit arising from the sale of the property, which is the hotel. Moreover, the learned judge ruled that, in accordance with the DNCV, all the plaintiff's rights, title, interests, obligations, and liabilities under the SPA and SA were novated to the second defendant. [46] Consequently, the learned judge concluded that the second defendant has a right to receive the excess upon the sale of the property to a third party since the plaintiff is no longer a party to the SPA and SA. In fact, the learned judge also found that the second defendant did not benefit from unjust enrichment. [47] In addition to the above, the learned judge found that the parties had been well aware that the RM56,250,000.00 would be treated as part of the total purchase price, and they were well aware there was no mistake regarding how the said RM56,250,000.00 would be treated. [48] With this whole scenario in mind, I am faced with the question of how can I allow this action to proceed to a full trial when I have a clear understanding of the said learned judge's findings concerning the above and also with a clear view that my findings may offend the said findings of the learned judge, resulting in the existence of possibly two conflicting findings on my part. [49] As a result of these facts, I find that the plaintiff here is attempting to reopen and relitigate the same issue before me and that this constitutes res judicata. [50] To support my findings above, I have the opportunity to refer to the Court of Appeal case of Chemfert Sdn Bhd & Anor v Lim Hua [2010] 5 MLJ 228, in which the Court of Appeal analysed the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 to determine what constitutes res judicata. Observations made by His Lordship Low Hop Bing JCA are as follows at pp 235-238: [23] In the light of these principles, we shall now consider the landmark decision in Asia Commercial Finance (M) Bhd. First, the facts there revealed that a fixed loan of RM750,000 ('the loan') for housing development was granted by the finance company to the borrower, on the security of several pieces of land. On the borrower's default, the finance company successfully obtained an order for sale from the land administrator. The borrower then filed an originating motion in the High Court against the finance company, seeking, inter alia, to set aside the order for sale and damages in connection with the failure of the borrower's housing project. The High Court and the (then) Supreme Court dismissed the borrower's originating motion and appeal respectively. Subsequently, the borrower brought a writ action against the finance company on the same ground as the originating motion. The finance company applied to strike out the borrower's statement of claim on a plea of res judicata but it was dismissed. The finance company's appeal was allowed by the (then) Supreme Court. Peh Swee Chin SCJ (as he then was) gave a comprehensive and scholarly account of the doctrine of res judicata, the relevant principles of which we gratefully extract and apply as follows:

Res judicata simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum.

When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties who should accept it as the truth — res judicata provitate accipitur.

The public policy of the law is that it is in the public interest that there should be finality in litigation interest rei publicae ut sit finis litium.

It is only just that no one ought to be vexed twice for the same cause of action — nemo debet bis vexari pro eadem causa.

Both the aforesaid maxims in (c) and (d) are the rationale for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.

Since a res judicata creates an estoppel per rem judicatum, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum which archaically was described as estoppel by record.

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: per Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at p 115; the 'point' should actually include causes of action, or all causes of action which one of the two parties has against the other, based on, or substantially on the same facts or issues, and not just all issues of law or of fact that are in dispute between the parties.

One of the exceptional special cases is the effect of a default judgment in subsequent proceedings between the same parties because a default judgment is different from a final judgment on the merits.

The well known relevancy of a previous judgment in barring a second suit is seen in s 40 of the Evidence Act 1950, which provides as follows: The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether the court ought to take cognizance of the suit or to hold the trial.

There are in fact two kinds of estoppel per rem judicatum, the first relates to cause of action estoppel and the second, to issue estoppel, which is a development from the first.

The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment and such right of action ie cause of action, merges into the final judgment; in layman's language, the cause of action has turned into the final judgment. The cause of action may not be relitigated between the same parties because it is res judicata.

In order to prevent a multiplicity of actions and also in order to protect the underlying rationale of estoppel per rem judicatum and not to act against them, such estoppel of cause of action has been extended to all other causes of action (based on the same facts or issues) which should have been litigated or asserted in the original earlier action resulting in the final judgment, and which were not, either deliberately or due to inadvertence; see Public Trustee v Kenward [1967] 2 All ER 870; [1967] 1 WLR 1062; Conquer v Boot [1928] 2 KB 336; Chamberlain v Deputy Commissioner of Taxation (1988) 62 ALJR 324 and LE Walwin & Partners Ltd v West Sussex County Council [1975] 3 All ER 604.

Issue estoppel literally means simply an issue which a party is estopped from raising in a subsequent proceedings. However, in law, issue estoppel means 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; neither of such parties will be allowed to adduce evidence or advance any argument to contradict such decision.

Issue estoppel prevents contradiction of a previous determination, whereas cause of action estoppel prevents reassertion of the cause of action: per Peter Gibson J in Lawlor v Gray [1984] 3 All ER 345 at p 350.

In preventing such contradiction of the previous judgment, one school of thought holds that issue estoppel applies only to issues actually decided by the court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the court, are still covered by the doctrine of res judicata, ie the doctrine of estoppel per rem judicatum.

Our Federal Court prefers the aforesaid contrary view, which represents a correct, even though broader, approach to the scope of issue estoppel and is warranted by the weight of authorities being completely in accord or resonant with the rationale behind the doctrine of res judicata, particularly the question of public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and the expanding resources of the courts being found always one step behind the resulting increase in litigation.

Res judicata for this purpose is therefore not confined to the issues which the court is actually asked to decide, but 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: per Somervell LJ in Greenhalgh v Mallard [1947] 2 All ER 255 at p 257 and quoted with approval in the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd and another [1975] AC 581; [1975] 2 WLR 690 (see also SCF Finance Co Ltd v Masri and another (No 3) [1987] QB 1028; [1987] 1 All ER 194 (CA); Bell v Holmes [1956] 3 All ER 449; [1956] 1 WLR 1359 and Hoystead and others v Commissioner of Taxation [1926] AC 155.

The words 'exercising reasonable diligence' in Henderson:

necessitate a mental exercise of making a finding as to whether there was diligence, or reasonable diligence, in the earlier failure to bring in at the previous trial the issues which should have been brought in the earlier action and which were not, or in asserting all other causes of action arising out of the same facts in the earlier action and which were not;

(ii) ought to be understood as a gentle rebuke for the failure aforesaid despite the fact that the party had the opportunity of bringing forward all such issues or asserting all such causes of action; and

(iii) are not meant to impose a precondition for applying the doctrine of res judicata, but are meant to say that the non-bringing of the issues would count in any event irrespective of whether the failure was or was not deliberate or due to inadvertence or negligence.

The court has the inherent jurisdiction to dismiss an action by applying the doctrine of res judicata against a party, even if it has not been pleaded, as estoppel is based on a question of public policy, and there should be finality in litigation: Superintendent of Pudu Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494 at p 498 per Abdoolcader SCJ (as he then was). See also Chong Kew v Leow Lay & Ors [2008] 6 MLJ 781 at pp 787-790 (CA). (Emphasis added) [51] In my further analysis of the law in this regard, I came across the Federal Court case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393, in which His Lordship Peh Swee Chin FCJ observed at p 417 that the previous court decision became the truth between the parties in that litigation proceedings: Before dealing with the point on which the Court of Appeal relied, let me deal briefly first with the other point of view referred to by me earlier, that of res judicata. The doctrine of res judicata would apply and bar the making of the order directly concerned, because the said previous order had become the truth between the landowners and the chargee, and the order directly concerned would constitute a challenge to the truth or accuracy of the said previous order. It is true that the doctrine was not expressly argued or expressly relied on by the courts below. [52] One more issue deserves consideration. [53] I would like to address the request for a consequential order from the second defendant that I exercise my inherent authority to grant an ancillary order prohibiting the plaintiff from bringing further action against the second defendant based on the same SPA, SA and DNCV without this court's leave. [54] As for this issue, I am not prepared to make such an order at this stage of the proceedings based on the arguments raised by the second defendant. The plaintiff's conduct, at least at this stage of the proceedings, does not warrant the imposition of a consequential order based on the evidence before me. [55] A final issue before me concerns the second defendant's request that award costs on an indemnity basis for the plaintiff's mala fide act of bringing this action in bad faith. [56] On the evidence before me in that regard, I am not able to determine that the plaintiff deliberately acted in bad faith when instituting this action, so I am not inclined to impose costs on an indemnity basis on the plaintiff. Conclusion [57] Given the foregoing, I hereby allow Enclosures 10 and 12 with costs of RM5,000.00 to each defendant, subject to allocatur. Dated 12th March 2026 (Raja Ahmad Mohzanuddin Shah) Judge High Court of Malaya Kuala Lumpur Counsel for the Plaintiff : Mahathir Abdullah & Krisnamogan a/l Supermaniam Messrs Ann & Anuar Counsel for the First Defendant : Chin Yan Wei & Chiou Zhi Qi Messrs Richard Wee Chambers Counsel for the Second Defendant: Mohamed Izzul Faris Messrs Simrenjeet, Tay & Co