Thean Seng Smart Trading Sdn Bhd v Tetuan Christopher & Lee Ong (PA-22NCvC-120-08/2025)

TETUAN CHRISTOPHER & LEE ONG (Disaman sebagai suatu firma guaman)

CHRISTOPHER LEE SIAN TEIK (Disaman sebagai perunding Defendan Pertama)

JOHN MATHEW A/L MATHAI (Disaman sebagai rakan kongsi di firma Defendan Pertama dan/atau sebagai individu)

NIAK HIONG KEONG (Disaman sebagai rakan kongsi di firma Defendan Pertama dan/atau sebagai individu)

WELLESLEY ASSETS I SDN BHD (NO. SYARIKAT: 1495143V) 30/06/2026 09:59:37

TAN HUEI YEE (Disaman sebagai CEO dan/atau wakil Defendan Ke-5 dan/atau individu)

ERIC TANG (Disaman sebagai COO dan/atau wakil Defendan Ke-5 dan/atau individu)

STRAITS TRADING COMPANY LTD DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosures 21 and 23) INTRODUCTION [1] The Plaintiff in this Suit seeks relief against the Defendants, alleging that the Defendants conspired/colluded to wrongfully and/or unlawfully -1, 2, 3, 4, 5, 6 and O-1, 2, 3, 4, 5, 6, 1st Floor and 2nd Floor, Crowne Plaza Penang Straits City, Jalan Bagan Luar, Bandar Selat, 12000 Butterworth, Penang (Demised Premises). [2] The Defendants then filed an application to strike out the Plaintiff's writ and statement of claim (SOC) under Order 18 Rule 19 of the Rules of Court 2012 (ROC 2012). The 1st (D1), 2nd (D2), 3rd (D3) and 4th (D4) (Enclosure 23), while the 5th (D5), 6th (D6), 7th (D7), and 8th (D8 21 (Enclosure 21). [3] Having heard the written and oral submissions of the parties, this Court has allowed both applications in Enclosures 21 and 23. The following are the full grounds of this Court's judgment. BRIEF FACTS [4] The Plaintiff, Thean Seng Smart Trading Sdn Bhd, is a company that at all material times entered into a tenancy arrangement with D5, Wellesley Assets I Sdn Bhd (Wellesley), in respect of the Demised Premises. [5] On 16.8.2024, Wellesley issued a Letter of Offer (Letter of Offer) to the Plaintiff to lease the Demised Premises for a fixed term subject to the terms and conditions contained therein. It was contemplated that a formal tenancy agreement would be executed between the parties thereafter. [6] In addition, Wellesley provided the Plaintiff with a Fitting-Out Manual (Fit-Out Manual) in August 2024, which stipulated the procedures governing renovation or fitting-out works at the Demised Premises. Among the important conditions in the Fit-Out Manual was an absolute prohibition against coring works on the floor slabs and walls of the Demised Premises. [7] In October 2024, Wellesley discovered that the Plaintiff and/or its contractors had carried out coring works on the floor slabs of the 1st floor of the Demised Premises without the knowledge and/or prior consent of Wellesley and/or the relevant authorities. The said coring works exposed and damaged the strands in the post-tensioned slab, thereby adversely affecting the safety and/or structural integrity of the building. [8] On 1.11.2024, a joint site inspection was conducted to assess the condition of the post-tensioned slabs. This inspection was attended by representatives from BBR Construction Systems (M) Sdn Bhd (BBR Construction) appointed by STC Property Management Sdn Bhd (STCPM), and the Plaintiff's contractor, TT Global Venture. [9] On 14.11.2024, Messrs Christopher & Lee Ong issued a letter on behalf of Wellesley to the Plaintiff terminating the LO with immediate effect and demanding the return of vacant possession of the Demised Premises within seven (7) days from the date of the letter (Termination Letter). [10] On 22.11.2024, BBR Construction issued a technical report dated 5.11.2024 (BBR Report). BBR Report concluded that the coring works caused the post-tensioned slab structures at gridline A-E/4 to lose an average of 5% of structural capacity. However, the coring works at gridline C/7 did not affect the structural capacity of the post-tensioned slab at that location. [11] In or around December 2024, the Plaintiff filed a Civil Suit No. PA- 22NCvC-191-12/2024 (Suit 191) against D5 D8 and several of D5's employees in respect of alleged breaches of the tenancy arrangement over the Demised Premises. Suit 191 was subsequently struck out on 10.2.2026 by Justice Rozana, for the Plaintiff's failure to comply with pre-trial case management directions. [12] Notwithstanding the above, the Plaintiff filed the present Writ of Summons and Statement of Claim (SOC) dated 14.8.2025 in this Suit 120, against D5 D8 and also against Messrs. CLO and its partners (D1 D4), based on the same facts, the same causes of action, and seeking similar reliefs as those claimed in Suit 191. [13] The Defendants raised a preliminary objection that Enclosure 30 and Enclosure 31 ought to be rejected and disregarded in determining this application for non-no party is allowed to file any further affidavits after the completion of the affidavit exchange on 5.2.2026 without leave of the Court. The Plaintiff has filed Enclosures 30 and 31 without obtaining such leave, thereby constituting a clear breach of this Court's directions and of Order 28 Rule 3C(4) of the ROC 2012. CONTENTION OF PARTIES The Plaintiff [14] The Plaintiff submitted that Suit 191 and Suit 120 are two separate causes of action, notwithstanding that the underlying facts arise from the same Demised Premises. According to the Plaintiff, Suit 191 was filed based on the primary cause of action concerning a tenancy dispute between the Plaintiff and D5 alone. In contrast, Suit 120 was filed focusing on the involvement and/or participation of all the Defendants in a conspiracy and/or collusion to wrongfully and/or unlawfully terminate the Plaintiff from D5's Demised Premises. Accordingly, the causes of action in both suits are entirely disjunctive. [15] The Plaintiff further submitted that since D1 D4 were never named in Suit 191, the principle of multiplicity of proceedings cannot be invoked. The parties in both suits are not completely identical, and therefore, there is no duplicity of proceedings. The Plaintiff relies on Kong Hoi Cheing v AK Land Sdn Bhd [2021] CLJU 1574, which held that two separate suits may arise from similar background facts but with different causes of action and different parties, and this does not amount to duplicity of proceedings and/or abuse of process. [16] The Plaintiff also submitted that the involvement of D6 D8 was not emphasised in Suit 191 as the claims there focused purely on the tenancy dispute and not on conspiracy and/or collusion. Equally, the professional negligence of D1 D4 was never raised in Suit 191. Accordingly, this Suit 120 is necessary to address the collective involvement of all the Defendants, which was not fully canvassed in Suit 191. [17] The Plaintiff further submitted that Suit 191 was struck out not on the merits but due to a technical failure to comply with pre-trial directions, namely because D1's solicitors (who also acted for D5 D8 in Suit 191) returned draft pre-trial documents only a day before the case management date and after office hours. The Plaintiff has filed an appeal against that decision, and in any event, this Suit 120 would not be affected if the appeal succeeds or if the Plaintiff files a fresh suit. [18] It is the contention of the Plaintiff that there are numerous triable issues to be resolved by the Court after a full trial, including: whether D1 D4 breached their professional ethics; whether D1 D4 had a conflict of interest in representing D5 D8; whether D6 D8 were involved in conspiracy and/or collusion; whether there was misrepresentation amounting to unlawful termination; and whether the letters dated 22.11.2024 to 21.12.2024 give rise to an adverse inference. [19] Regarding the conspiracy allegations, the Plaintiff submitted that the elements of conspiracy as established in Renault SA v Inokom Corporation Sdn Bhd & Anor and other Applications [2010] 5 CLJ 32 have been satisfied, namely there is an agreement among all eight Defendants for the purpose of injuring the Plaintiff, acts done in execution of that agreement resulted in damage to the Plaintiff, and the damages are clearly pleaded in the SOC dated 14.8.2025. [20] The Plaintiff also submitted that the Defendants' allegation of structural damage is untrue based on a selective reading of the BBR Report, stating that coring at gridline C/7 did not affect structural capacity. [21] As regards D1 D4 specifically, the Plaintiff submitted that their involvement as solicitors exceeded the ordinary professional role because D1's representative, Ong Wei Ying, had attended one Zoom meeting dated 20.11.2024 and conspired with D6 D8. The Plaintiff further submitted that the said Zoom meeting cannot be classified as "without prejudice" since no settlement was attempted by any party. [22] Regarding the preliminary objection to Enclosure 30 and Enclosure 31, the Plaintiff submitted that the said affidavit is material for the Court's consideration of the relationship between all the Defendants, and the deponent Goh Jun Geng will be called as a witness at the full trial. The Plaintiff further submitted that the filing of the affidavit has not caused any delay and does not prejudice any party as similar facts have been acknowledged by the Defendants and there is no element of surprise. The 1st to 4th Defendants (D1 D4) [23] D1 D4 raised a preliminary objection that Enclosure 30 and Enclosure 31 ought to be rejected from the Court's record and/or disregarded in determining this application. During the case management on 8.1.2026, this Court gave clear directions that no party was allowed to file any further affidavits after the completion of the affidavit exchange on 5.2.2026 unless the said party first obtained leave of the Court. The Plaintiff filed Enclosures 30 and 31 without obtaining such leave, thereby constituting a clear breach of this Court's directions and Order 28 Rule 3C(4) of the ROC 2012. [24] Further, D1 D4 submitted that the Plaintiff is estopped from re-litigating matters which are already the subject of Suit 191. The reliefs sought, causes of action, issues to be tried, and material facts relied upon in the present suit are substantially the same as those pleaded in Suit 191. The Plaintiff itself admitted in its Affidavit in Reply that the factual matrix underlying both proceedings is the same. The issue concerning the termination letter dated 14.11.2024 issued by D1 on behalf of D5 is already directly in issue in Suit 191. [25] D1 D4 also submitted that the present suit is an abuse of the process of this Court and is premature, as it arises from the same factual matrix and dispute already litigated in Suit 191. The Plaintiff's conduct in maintaining two separate suits based on similar facts, issues, and reliefs simultaneously exposes this Court to the risk of two courts reaching different findings on the same dispute concerning the termination of the tenancy and the parties' respective rights. [26] It is also submitted by D1 D4 that the claims against them are unsustainable, as they were never party to the Letter of Offer nor the proposed tenancy agreement. The contractual relationship was solely between the Plaintiff and D5. D1 acted only in their professional capacity as solicitors for Wellesley. The principle of privity of contract as decided in Bauer (Malaysia) Sdn Bhd v Hundred Vision Construction Sdn Bhd [2020] MLJU 543 is clear that only parties to a contract may sue or be sued upon it. [27] Regarding the Zoom meeting on 20.11.2024 (Zoom Meeting), D1 D4 submitted that it was held on a "without prejudice" basis at the Plaintiff's request. Communications made on a without prejudice basis are privileged and cannot be relied upon as evidence of admission or liability in civil proceedings. D1 D4 further submitted that D2, D3 and D4 were not present at the Zoom Meeting, and D4 only sent a chambering pupil, Ong Wei Ying, to observe the meeting via Zoom. Accordingly, any alleged admissions or representations arising from the Zoom Meeting cannot be attributed to D1 D4. [28] D1 D4 further submitted that the BBR Report was never prepared by, addressed to, or received by D1 D4 at any material time, and was never in their possession, custody or control. It is therefore logically impossible for D1 D4 to have "hidden" or "suppressed" a document which never came within their knowledge or possession. Furthermore, emails dated 24.9.2024 and 15.10.2024 from the Plaintiff's former solicitors showed that D1 D4 were not even copied in the correspondence attaching the draft Tenancy Agreement, proving that D1 D4 were not involved in the dealings relied upon by the Plaintiff. [29] As regards to D2 specifically, D1 D4 submitted that D2 is merely a consultant within D1's firm and not a partner. Liability for the obligations of a firm arises by virtue of a person's status as a partner under Section 11 of the Partnership Act 1961. Accordingly, the principles governing the personal liability of partners do not apply to D2 as a consultant. [30] It is also the submissions of D1 D4 that the SOC contains no proper particulars to support the serious allegations of fraud, misrepresentation, conspiracy and collusion. Bare allegations without material facts are insufficient and render the pleading frivolous and vexatious. The Plaintiff has also failed to demonstrate how D1 D4 breached any legal duty owed to the Plaintiff. The 5th to 8th Defendants (D5 D8) [31] Similarly, D5 D8 also raised a preliminary objection that Enclosure 30 ought to be rejected from the Court's record and/or its contents disregarded in determining this application, as it was filed without the Court's leave after the completion of the affidavit exchange and contrary to case management directions. [32] D5 D8 submitted that this current Suit 120 is plainly duplicative of Suit 191 and an abuse of the process of this Court. A plaintiff is not entitled to pursue two parallel suits against the same or aligned parties based on the same subject matter, seeking the same relief. D5 D8 presented a detailed comparison table between Suit 191 and Suit 120, showing marked similarities in the parties, facts, allegations, and reliefs sought. D5 D8 had relied on the cases of Penang Port Commission v Kanawagi A/L Seperumaniam [2009] 1 CLJ 169, Nazaruddin bin Mohd Shariff @ Masari & Anor v Roslan bin Maulud & Anor [2020] 1 LNS 1235, and Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis bin Osman [2025] 8 CLJ 310, which held that even where the wording of the reliefs in two suits are not identical, if the essential nature and objective of the reliefs are substantially the same, there is clearly a duplicity of proceedings, and the Court must guard against duplicative litigation to prevent the risks of inconsistent findings, unnecessary expenditure of judicial time, and the possibility of a party securing multiple bites at the cherry. [33] D5 D8 further submitted that the same issues have already been raised, considered and determined in Suit 191, and the present suit therefore clearly falls within the doctrine of res judicata, estopping the Plaintiff from re-litigating those matters. D5 D8 refer to the findings made by Justice Wendy Ooi Su Ghee in her Ladyship Grounds of Judgment for the striking out application in Suit 191, which decided inter alia that the Plaintiff had no cause of action against Tan Huei Yee, Eric Tang and STC; that the LO continued to bind the parties; that the representations and promises of Tan Huei Yee and Eric Tang did not justify them being made parties to the action; and that the conspiracy claim was not established due to the absence of sufficient particulars. [34] It was also the submissions of D5 D8 that the reason advanced by the Plaintiff to justify the present suit, that the involvement of D5 D8 was not fully addressed in Suit 191, is untenable. If the Plaintiff genuinely believed that D1 D4 were involved in the alleged wrongdoing, the proper course would have been to join D1 D4 as parties in Suit 191, rather than commence a separate suit based on the same factual foundation. [35] D5 D8 further submitted that there is no reasonable cause of action against D6, D7 and D8 as the tenancy arrangement existed only between the Plaintiff and Wellesley. The doctrine of separate legal entities as established in Salomon v Salomon & Co Ltd [1897] AC 22 and SCEC Group (M) Sdn Bhd v Wong Siew Woon & Ors [2025] MLJU 21 precludes the Plaintiff from suing D6 and D7 in their personal capacities solely based on their roles as officers of Wellesley, and from suing STC as a related company that was not involved in any agreement with the Plaintiff. [36] D5 D8 also submitted that the Plaintiff's conspiracy allegation is unsustainable as its foundation is untrue. The Plaintiff selectively relied upon only one portion of the BBR Report, stating that coring at gridline C/7 had no effect on structural capacity, while ignoring the overall conclusion of the BBR Report, which clearly found that the building suffered a loss of an average 5% of structural capacity at gridline A-E/4 due to the coring incident. Since the Fit-Out Manual expressly prohibited coring works, there was a valid reason for Wellesley to terminate the tenancy, which renders the conspiracy allegation unsustainable. D5 D8 further submit that the conspiracy pleading was merely "rolled up" without any material facts or particulars in the Statement of Claim to substantiate the alleged cause of action. D5 D8 also submit that the issue of "conflict of interest" raised by the Plaintiff was not a pleaded issue in the Statement of Claim, having only been raised in the Plaintiff's Reply to the Defence of D5 D8. Accordingly, this issue is a non-starter and cannot be considered by this Court. ANALYSIS AND FINDINGS The Preliminary Objection [37] This Court observed, as objected by the Defendants, that the Plaintiff has failed to comply with the directions of the Court. The law is clear that parties must strictly comply with directions whether or not there is unless order (see Syed Omar Syed Mohamed v. Perbadanan Nasional Berhad [2012] 9 CLJ 557; [2013] 1 MLJ 461; [2013] 1 MLRA 181 (FC); Hup Soon Omnibus Co Sdn Bhd & Anor V. Lim Chee @ Lam Kum Chee [2017] MLJU 1937; [2017] MLRAU 515; [2018] 1 CLJ 641 (CA); Koh Heng Jin v. Gan Kooi Ann [2015] CLJU 1244; [2015] 1 LNS 1244; [2016] AMEJ 0039; [2015] MLJU 2242; [2015] MLRAU 403 (CA); Lim Goh Eng Holdings Sdn Bhd v. Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275; [2019] CLJU 2143; Koh Heng Jin @ Koh Heng Leong v. Gan Kooi Ann [2015] CLJU 1244; [2015] 1 LNS 1244; [2016] AMEJ 0039; [2015] MLJU 2242; [2015] MLRAU 403 (CA); Hong Leong Finance Bhd v Low Thiam Hoe & Anor [2015] 8 CLJ, [2016] 3 MLRA 81; [2016] 1 MLJ 301; and Sunway PMI Pile Construction Sdn Bhd v. Pembenaan Chan & Chua Sdn Bhd [2001] 5 MLRH 665; [2002] 7 MLJ 538; [2003] 5 CLJ 63). [38] Parties who chose not to obey the directions of the Court acted at their own peril, as decided in the case cited by the Defendants; Peck Chew Piling (M) Sdn Bhd v Panzana Enterprise Sdn Bhd [2022] MLJU 390; [2022] CLJU 428; [2022] 5 MLRH 423, which held that affidavits filed in contravention of court directions and without leave are to be rejected and disregarded. [39] In the present case, the Plaintiff did not seek any leave, and therefore, Enclosures 30 and 31 are expunged and disregarded in determining the present application. Order 18 Rule 19 of the ROC 2012 [40] The Defendants filed Enclosures 21 and 23 under Order 18 Rule 19 of the ROC 2012, which provides-

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 [41] The principle for striking out of pleadings pursuant to O18 R19 of the ROC 2012 is well settled (see Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd [1993] 1 MLRA 611; [1993] 3 MLJ 36; [1993] 4 CLJ 7; [1993] 2 AMR 1969, Sim Kie Choon v. Superintendent of Pudu Prison & Ors [1985] 1 MLRA 167; [1985] 2 MLJ 385; [1985] CLJ (Rep) 293, Middy Industries Sdn Bhd & Ors v. Arensi Marley (M) Sdn Bhd [2013] 3 MLRA 114; [2013] 3 MLJ 511 and Gasing Heights Sdn Bhd v. Aloyah bte Abd Rahman & Ors [1996] 2 MLRH 631; [1996] 3 MLJ 259; [1996] 3 CLJ 695; [1996] 3 AMR 3000). [42] Further, the case of See Thong & Anor v Saw Beng Chong [2013] 3 MLJ 235; [2012] CLJU 817; [2013] 4 MLRA 259 defines frivolous or a groundless action of statement with no prospect of success, often raised to embarrass or annoy the other party in the action obviously unsustainable , it was held that an abuse of the court process under sub-process is used for an unlawful object and not for the actual purpose intended to achieve justice [43] Additionally, in Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLRA 175; [2013] 5 MLJ 1; [2013] 6 CLJ 673; [2013] 4 AMR 385 (FC) where the claim on the face of it is obviously unsustainable, the claim should be struck out [44] In determining whether the SOC is scandalous, frivolous or vexatious the Court of Appeal in Harapan Permai Sdn Bhd v Sabah Forest Industries Sdn Bhd [2011] 1 CLJ 285; [2011] 2 MLJ 192; [2010] 3 MLRA 37; [2011] 1 AMR 21, held that in the context of Order 18, rule 19(1)(b) of the ROC 2012, scandalous wholly unnecessary and irrelevant and not just unpleasant allegations. Likewise, the word frivolous vexatious means obviously unsustainable- 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 light of the factual background as alluded to above, we are of the view that the action instituted by the plaintiff against the defendant is not wholly unnecessary and irrelevant. Hence, it cannot be said to have come within . [45] Further, in Harapan Permai Sdn Bhd (supra abuse of the process of the court O18 R19 (1)(d) of the ROC 2012 means that the process of the court has not been used in a bona fide manner and the process has been abused. It was held-O 18 r 19(1)(d) where the process of the court has not been used in a bona fide manner and the process has been abused: see eg Gabriel Peter & Partners (suing as a Firm) v Wee Chong Jin & Ors [1998] 1 SLR 374 at p 384 (CA); Desa Saujana Corporation Sdn Bhd & Ors; and Hadi bin Hassan v Suria Records Sdn Bhd & Ors [2005] 3 MLJ 522 (HC). In this context, it is appropriate for us to examine the issue of illegality and s 24(6) raised for the [46] The Defendants also submitted that the filing of the present suit creates a duplicity of proceedings, where substantially the same facts, issues, and reliefs are placed before two different courts and cited the cases of Penang Port Commission v Kanawagi a/l Sepurumaniam [2008] 6 MLJ 686; [2009] 1 CLJ 169; [2008] 6 AMR 250; [2008] 2 MLRA 496 and Nazaruddin bin Mohd Shariff v Roslan bin Maulud [2020] MLJU 1362; [2020] CLJU 1235; [2020] MLRHU 1096 and further submitted that such conduct carries the real risk of conflicting judicial decisions (see Konsortium Abass Sdn Bhd v Syarikat Bekalan Air Selangor Sdn Bhd [2013] 7 MLJ 1; [2012] CLJU 1046; [2012] MLRHU 1051 and Tai May Chean v New Way Capital Sdn Bhd & Anor [2020] 12 MLJ 471; [2019] 9 CLJ 477). This Court agrees. [47] Notably, in Penang Port Commission (supra), the Court of Appeal held that the filing of multiple actions on substantially similar issues and the seeking of substantially similar reliefs constitute a multiplicity of proceedings and amount to a clear abuse of the Court's process. [48] On the Plaintiff s claim against D6, D7 and D8, it was undisputed that D6 is the Chief Executive Officer and D7 is the director of D5. In this regard, the law is clear that a company is a body corporate having a legal personality (see section 20 of the Companies Act 2016 and the landmark case of Salomon v Salomon & Co Ltd [1897] AC 22); thus, D6 and D7 are distinct from D5. D8, on the other hand, is merely a related company of D5 and was never involved in the formation or the termination of the tenancy. In the circumstances, this Court agrees with the submissions of the Defendants that there is no nexus between the Plaintiff, D6, D7, and/or D8 capable of sustaining any reasonable cause of action against them. [49] Further, it was also observed that the Plaintiff had previously filed a disqualification application in Civil Suit No. 191 seeking to disqualify D1 from acting for the Defendants on the alleged basis of conflict of interest. The application was dismissed by Justice Anand Ponnudurai on 3.7.2025 (see Exhibit NHK-13 at page 15 of Enclosure 24). The Defendants submitted that this signifies that the allegations of conflict and impropriety against D1 D4 are without merit. Res judicata [50] To substantiate Enclosures 21 and 23, the Defendants also submitted Res Judicata on the basis that there was already Suit 191, which dealt with the same matter. [51] After perusal of this instant Suit 120 and Suit 191, clearly, the commencing of the multiple proceedings premised on the same facts, almost identical parties and seeking similar remedies, constitutes an abuse of process and warrants this suit to be struck out in limine. This was evidenced as outlined by the Defendants in the following table-Parties No.

D1: Wellesley D2: Tan Huei Yee D3: Eric Tang D4: Rajender a/l Muniandy D5: Pearly Foong D6: Slyvia Tan D7: Straits Trading Company Ltd D8: Intercontinental Hotels Group Plc D1: M/S CLO D2: Christopher Lee Sian Teik D3: John Mathew a/l Mathai

Both Suits 191 and Suit 120 are premised on the same facts, whereby Thean Seng (Plaintiff) had alleged that it had the tenancy arrangement between the parties. (Plaintiff) Allegations

Against Wellesley That the termination of the tenancy arrangement between parties was unlawful as it was promised a tenure of 10 years tenancy. (Para 27 of the SOC) Against Tan Hwei Yee and Eric Teng That there were representations and promises to induce the Plaintiff to enter into the tenancy arrangement. (Para 7 and 16 of the SOC) Against Straits Trading Company Ltd That Straits Trading Company Ltd was the one shares in Wellesley. (Para 28 and 29 of the Against the Defendants collectively Against Wellesley That the termination of the tenancy arrangement between parties was unlawful as it was promised a tenure of 10 years tenancy. (Para 22 to 24, 26, 39(e) of the SOC) Against Tan Hwei Yee and Eric Teng That there were representations and promises made to induce the Plaintiff to enter into the tenancy arrangement. (Para 13 of the SOC) Against Straits Trading Company Ltd No specific allegation was made against Straits Trading Company Co Ltd. Against the Defendants collectively That there was conspiracy and/or collusion between the Defendants which resulted it to suffer losses and damages and/or amounted to economic sabotage. (Para 30 to 35 of the SOC) That the Defendants defrauded the Plaintiff to carry out extensive renovation works at the Demised Premises. The Plaintiff carry out its business at the Demised Premises. (Para 16 and 36 of the That there was conspiracy and/or collusion between the Defendants which resulted it to suffer losses and damages and/or amounted to economic sabotage. (Para 27, 28 and 38 of the That based on the representations the Plaintiff the tenancy. (Para 24 of the SOC)

A declaration that the termination of the tenancy was unlawful. (Para 39(c) of the SOC) Restitution of RM570,789.55 paid and/or any expenses incurred for the renovation works. (Para 39(d), (e) and (l) of the SOC) Damages for fraud, conspiracy, and economic sabotage. (Para 39(j) and (k) of the A declaration that the termination of the tenancy was unlawful. (Para 39(e) of the SOC) Restitution of RM570,789.55 paid and/or any expenses incurred for the renovation works. (Para 39(g) of the SOC) Damages for conspiracy and economic sabotage. (Para 39(i) of the SOC) Loss of profits for 10 years in the sum of RM120 million. (Para 38(c) and 39(m) of the SOC) Exemplary damages. (Para 39(o) of the SOC) Aggravated damages (Para 39(p) of the SOC) Loss of profits for 10 years in the sum of RM120 million. (Para 39(j) of the SOC) Exemplary damages. (Para 39(k) of the SOC) Aggravated damages (Para 39(l) of the SOC) [52] Accordingly, as contended by the Defendants, the reliefs sought, causes of action, issues to be tried, and the material facts relied upon in the present suit are substantially similar to those pleaded in Suit 191. In fact, the Plaintiff in its Affidavit in Reply (Enclosure 26) affirmed that-

Ia adalah ketara bahawa fakta dalam tindakan di sini adalah sama dengan tindakan PA-22NCVC-191-12/2024. Namun begitu, isu-isu yang dibangkitkan dalam tindakan di sini adalah berpandukan tindak-tanduk Defendan-Defendan yang bersepakat untuk mengakibatkan kerugian kepada Plaintif. [53] In this regard, the Court of Appeal in Shanmugam v Artisan Fokus Sdn Bhd [2015] 4 MLRA 674 held-

In the instant appeal it could not be denied that both claims arose from the same one and only transaction and were undoubtedly interrelated. Therefore it would be unjust to permit the respondent to make a double claim by filing two separate actions for the same relief. The instant action was an abuse of the process of the court. (para 28)

Even if there had been no actual decision as to the issues involved in the instant action, but if the respondent had not raised those issues in the earlier proceedings which it could and should have done so, the plea of the doctrine of res judicata in its amplified and wider sense was available to the appellant to prevent an abuse of the process of the court. (para 29) [54] The issue in this Suit and Suit 191 is similar concerning the termination letter dated 14.11.2024 issued by D1 on behalf of D5, which cannot be re-litigated in the present suit by commencing a separate proceeding based on the same facts and dispute. [55] Res judicata is a rule of substantive law. On this point, the principle is clear that a litigant is estopped from raising an issue in a subsequent proceeding when he or she could have raised it in an earlier proceeding but did not do so. Allowing parties to nevertheless raise the issue later would be tantamount to permitting the filing of actions in instalments and would jeopardise finality in litigation and other public policy considerations. [56] Similarly, in Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 MLJ 180; [2021] 1 CLJ 1; [2021] 1 MLRA 54, the Federal Court held-The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (1843) 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are:

a party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel);

if a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (ie to recover further damages);

the doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the only right is the judgment itself;

a party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel);

a party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the Henderson v Henderson and

there is a general procedural rule against abusive proceedings. It must also be shown that the earlier judgment necessarily and with [57] Earlier, in a landmark case of Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 1 MLRA 611, the Supreme Court deliberated on this issue and held-

When a matter between two parties has been adjudicated by a court of competent jurisdiction, they and their privies are not permitted to litigate once more the res judicata, as the judgment becomes the truth between such parties. An estoppel per rem judicatum has been created as a result.

There are two kinds of estoppel per rem judicatum, ie cause of action estoppel and issue estoppel. The cause of action estoppel prevents reassertion of a cause of action which has been determined in a final judgment by the same parties. On the other hand, the issue estoppel prevents contradiction of the correctness of a final judgment by the same parties in a subsequent proceeding. Further, the parties are also prevented from asserting a cause of action or issue which should have been brought forward in the earlier action, but was not, whether deliberately or inadvertently. [58] Res judicata can also apply where the issues were not raised in the previous claims but might have been. In Twin Pavilion Development Sdn Bhd v Teo Choon Ming & Ors [2023] 5 MLRA 579; [2023] MLJU 1115; [2023] CLJU 972, the Court of Appeal held-From the above, we recognise that the current claim is different from the previous claims. However, res judicata can apply in instances to issues which might have been and which were not brought forward either deliberately or inadvertently. This has been clearly set out in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 1 MLRA 611; [1995] 3 MLJ 189; [1995] 3 CLJ 783; [1995] 3 AMR 2559, which we will do well to refer to. [14] The principle is this and is evident from pp 616, 617 and 619: "What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatam. 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, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation - interest reipublicae 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 una et eadem causa. Both maxims are the rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. ..... The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v. Henderson (1843) 3 Hare 100 at p 115 which is: 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. ..... There is one school of thought 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 doctrine of estoppel per rem judicatam. We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatam. It is particularly important to bear in mind the question of the 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 with the expanding resources of the Courts being found always one step behind the resulting increase in litigation." [59] Additionally, in Twin Pavilion Development (supra), it was held- "[27] The striking out was premised on 0.18 r.19(1)(b) or (d) RC 2012 which are the grounds of frivolous or vexatious and abuse of the process of the court. We find that as the Respondents' claim is barred by the principles of res judicata it warrants striking out on the aforesaid grounds." [60] Therefore, this Court is inclined to the submissions of the Defendants that this instant Suit and Suit 191 essentially and primarily concern the same cause of action, about some of the same parties and their privies, and the issue of termination of a tenancy (see Serac Asia Sdn Bhd (Supra)). Clearly, the Plaintiff cannot fragmentise its causes of action in respect of the same subject matter into different parts and file them in court in separate suits by instalment. [61] This Court finds that this Suit relates entirely to the same tenancy dispute which formed the subject matter of Suit 191, and is not distinct or separate from the material facts forming the basis of the present action. [62] Also, there is indeed nothing to prevent the Plaintiff from raising this claim in Suit 191. It could and should have raised it then, but did not, thus caught by Res Judicata (See Asia Finance (supra)). [63] As such, this Court finds that this was an attempt by the Plaintiff to resuscitate its claim in Suit 191. [64] Hence, applying the above-cited authorities, this Court is inclined to the submissions of the Defendants that the Plaintiff is barred from relitigating the action. Privity of Contract [65] The Defendants contended that they were never parties to the Letter of Offer dated 16.08.2024 or to the proposed tenancy arrangement, except D5. The contractual relationship was solely between the Plaintiff and D5. To this Court, this was undisputed. [66] In this regard, the principle of privity of contract is clear. In the present case, the Letter of Offer is between the Plaintiff and D5. D1 acted as solicitors for D5, and D2 is a consultant of D1 and not a partner. Therefore, D1, as solicitors for D5, and D2, as D5's consultant, should not be held liable in respect of contractual matters between the Plaintiff and D5. [67] The Plaintiff also raises a contention of professional negligence at paragraph 23 of Enclosure 37. The Defendants submitted that this contention ought to be disregarded, as it is well established that solicitors generally do not owe a duty of care to third parties, in this case the Plaintiff and cited a Federal Court case of Pushpaleela R Selvarajah & Anor v Rajamani Meyappa Chettiar & Other Appeals [2019] 2 MLJ 553; [2019] 3 CLJ 441; [2019] 2 AMR 442. On this point, this Court finds that all other Defendants are not privy to the tenancy arrangement except D5, and so it is validly submitted and accepted by this Court. [68] Therefore, this Court is of the view that this suit is vexatious and an abuse of process on the point of Res Judicata. It is also duplicative of the suit filed by the Plaintiff in Suit 191. Further, the tenancy arrangement was entered into only between the Plaintiff and D5. CONCLUSION [69] Having considered the totality of the circumstances, the parties' submissions, and the applicable legal principles, for the reasons set out above, Enclosures 21 and 23 are allowed with costs. DATED: 28 JUNE 2026 -SGD- (DR. SUZANA BINTI MUHAMAD SAID) Judge High Court 3 Georgetown, Pulau Pinang For the Plaintiff: Indhumaliniy Messrs Ismail Khoo & Associates For the 1st 4th Defendants: Mureli Navaratnam, Lai Chia Loong and Rubiniswary Messrs Mureli Navaratnam For the 5th 8th Defendants: Ranjit Singh and Chai Chin Wuen Messrs Ranjit Singh & Yeoh