1. Rhea Zadani Corporation Sdn Bhd2. Wan Aminuddin Bin Wan Ibrahim3. Salmah Bt Baharom4. Rosminar Bt Hashim5. Aminrul Affendi Bin Abdul Jalil6. Nurhayati Bt Abd Jalil VsBank Islam Malaysia Bhd

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN DAGANG)

 

GUAMAN NO: 22M-105-08/2014

 

ANTARA

 

1. RHEA ZADANI CORPORATION SDN BHD -(301681-W)

 

2. WAN AMINUDDIN BIN WAN IBRAHIM (NO. K/P: 530528-11-5067)

 

3. SALMAH BINTI BAHAROM (NO. K/P: 560605-09-5002)

 

4. ROSMINAR BINTI HASHIM (NO. K/P: 751118-09-5074)

 

5. AMINRUL AFFENDI BIN ABDUL JALIL (NO. K/P: 780425-09-5149)

 

6. NURHARYATI BINIT ABD JALIL (NO. K/P: 791204-09-5042)

 

DAN

 

BANK ISLAM MALAYSIA BERHAD ( 98127-X)

 

PLAINTIF -PLAINTIF

 

DEFENDAN

 

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GROUNDS OF JUDGMENT

 

Enclosure 5 is the defendant’s application to strike out the plaintiffs’ Writ of Summons and Statement of Claim dated 04th August 2014 pursuant to Order 18 rule 19(1) (b), (c), and (d) of the Rules of Court 2012.

 

Brief Background

 

[2] The defendant had awarded three facilities to the 1st plaintiff as follows:-

 

a. Istisna’ I and Istisna’ II which were guaranteed by the 2nd , 3rd and 4th Plaintiffs; and

 

b. Istisna’ III which was guaranteed by the 2nd till 6th Plaintiffs.

 

[3] The 1st plaintiff is a company and a housing developer whereas the 2nd till 6th plaintiffs are individuals and guarantors of the facilities concerned. The defendant is a financial institution in Malaysia.

 

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[4] The 1st plaintiff had opened a Housing Development Account (HDA) with the defendant pursuant to section 7A of the Housing Development ( Control and Licensing) Act 1966 (Act 118). The 1st plaintiff had received deposits of RM22,587,840.00 from buyers and this deposits were put into the HDA as provided under Regulation 4 of the Housing Development ( Housing Development Account) Regulations 1991. Due to the default on the part of the 1st plaintiff, the defendant had filed an action in Kuala Lumpur High Court vide Civil No: 22A-57-2011 (2011 Suit) against the defendants and the 1st plaintiff had made a counter claim. The defendant later filed an application for summary judgment against the plaintiffs.

 

[5] The learned High Court Judge had allowed the Summary Judgment on 07th March 2012 and later dismissed the Counter Claim after a full trial on 10th September 2012. The plaintiffs now aver that the Judgment and the Counter Claim Judgment were wrong in law as the defendant had :-

 

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a. breached statutory provisions;contravened natural justice and violated Articles 5 (1) and 8 (1) of the Federal Constitution; and

 

b. obtained the judgments by fraud.

 

[6] The plaintiffs also aver that the defendant had made malicious prosecution: –

 

a. in executing bankruptcy proceedings against the 2nd till 6th plaintiffs;

 

b. disclosing information to outsiders and thus, contravened section 133 of the Financial Services Act 2013;

 

[7] The plaintiffs claim that they had suffered losses and damages when the Judgments obtained and bankruptcy proceedings were commenced. As such, the plaintiffs file this Writ of Summons and Statement of Claim and pray for:

 

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a. an order that the Summary Judgment be set aside;

 

b. an order that the Counter Claim Judgment be set aside;

 

c. an order that the B1 Claim and the RZ Claim be reinstated and then be case managed by a Kuala Lumpur High Court Judge on such date as this court deems fit;

 

d. general damages to be assessed by the Senior Assistant Registrar;

 

e. interest at the rate of 4% per annum on such damages that are awarded, calculated from the judgment date till the date of full realisation;

 

f. costs; and

 

g. other reliefs as the court deems fit.

 

Issues

 

[8] I have perused the cause papers and considered submissions made by the parties written as well as oral. In my considered view the issue before this court is whether those judgments in 2011 Suit can now be set aside and whether the principle of res judicata and estoppels apply in this case.

 

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Parties’ Submission

 

[9] The plaintiffs oppose this application and submit that they have valid causes of action against the defendant as they contend that the judgment was obtained by fraud and therefore fresh action is required to be taken to set the judgment aside. The plaintiffs rely on the Federal Court cases of Serac Asia Sdn Bhd v Sepakat Insurance Brokers Sdn Bhd [2013] 5 MLJ 1 and Hock Hua Bank Bhd v Sahari bin Murid [1981] 1 MLJ 43 which was cited with approval by the former that if a judgment has been obtained by fraud, a fresh action will lie to impeach the original judgment.

 

[10] The plaintiffs further submit that there was a Syariah issue in 2011 Suit which requires it to be referred to the Syariah Advisory Council i.e whether the Istisna’ Facilities are in compliance with the principle of syariah. Pursuant to section 56 of Central Bank of Malaysia Act 2009 (CBA) it is mandatory for the High Court Judge to either enquire whether there are rulings by the Syariah Advisory Council on Istina’ facility or refer the syariah question to the council. But the High Court Judge, the plaintiffs contend, had failed

 

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to consider the said section 56 and that section 56 was never

 

addressed.

 

[11] The plaintiffs submit that the judgment contravened regulations 4 and 7 of the Housing Development ( Housing Development Account) Regulations 1991 (HDA), when the High Court Judge allowed the withdrawals from the HDA accounts by the defendant.

 

[12] The plaintiffs also submit that the learned High Court Judge had failed to give proper consideration to the issues raised by the plaintiffs hence violated the rules of natural justice as the plaintiffs had the rights to be heard under Articles 5 and 8 of the Federal Constitution. The plaintiffs contend that the defendant had withheld material evidence which led to the Summary Judgment and therefore the judgment must be set aside as it was obtained by fraud. The plaintiffs contend that certain evidence adduced during the full trial of their Counter Claim were not disclosed during the application for Summary Judgment.

 

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[13] The plaintiffs also contend that the defendant had commenced a malicious prosecution against the 2nd until the 6th plaintiffs when the defendant filed a Bankruptcy Notice against them. The plaintiffs further allege that the filing of Bankruptcy Notice is without legal basis and with a view to pressure the plaintiffs to relinquish its entitlement in relation to the project.

 

[14] The plaintiffs also submit that the action is not barred by res judicata/estoppels by contending that in the case of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1

 

MLJ 393 it was decided that, the Court has inherent jurisdiction to set aside another court order and in such action, the doctrine of res judicata is inapplicable. The defendant did not make specific averments to answer and/or respond to the issues of contravention of statutes, fraud and lack of jurisdiction of the High Court Judge as raised in this claim. By applying to strike out this claim, the plaintiffs contend, the defendant is pleading to this court to ignore the illegality of the said Judgments and the fraud committed by the defendant.

 

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[15] On the part of the defendant; the defendant submits that the principle of res judicata and estoppel apply in this case as the issues raised by the plaintiffs are the same issues raised in the 2011 suit. All the issues were fully ventilated and the plaintiffs had also appealed to the Court of Appeal. By bringing up the same issues which had been disposed of, the plaintiff’s claim is res judicata and an abuse of process of the court. The defendant relies on the case of Huawei Tech Investment Co Ltd v Transition Systems (M) Sdn Bhd [2013] 5 MLJ 396 to support its submission on this issue. The defendant also contends that there are no special circumstances to justify the commencement of this claim and therefore the plaintiffs should be estopped from proceeding with the claim. The case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 was cited by the defendant.

 

[16] The plaintiffs, the defendant further submits, neither submitted in the 2011 Suit that the High Court Judge should refer the syariah issue to the Syariah Advisory Council of Bank Negara Malaysia pursuant to section 56 of the Central Bank Act of

 

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Malaysia nor applied for the same to be referred to the Syariah Advisory Council of Bank Negara Malaysia.

 

[17] The plaintiffs also, according to the defendant, did not elaborate on which part of the Istisna’ Agreements that they alleged were invalid and inconsistent with the Istisna’ concept. The defendant contends that the monies held in the HDA belonged to the defendant as part of the redemption sums. Rules 7 and 8 of the Housing Development Regulations 1991 only concern about the withdrawal of monies from the HDA by the 1st plaintiff.

 

[18] The defendant also contends that it did not commit fraud in the 2011 Suit. The plaintiffs had the opportunity to apply for leave to submit fresh evidence as provided under Section 69 of the Courts of Judicature Act and Rule 7 (3A) of the Rules of the Court of Appeal 1994 and also had the right to discovery under Order 24 of the Rules of the High Court 1980. And yet the plaintiffs had failed to take up those opportunities. The defendant also submits that it has the right to exercise the judgments obtained through the

 

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court of competent jurisdiction and the plaintiffs did not apply for stay.

 

[19] The bankruptcy proceedings according to the defendant were not carried out maliciously as the defendant had followed proper procedures. The plaintiffs did not object the defendant’s application to vary the judgment dated 07th March 2012. The plaintiffs, the defendant contends are entitled to impeach the judgment obtained in the 2011 Suit as one High Court cannot set aside the order made by another High Court . The defendant relies on the case of Badiaddin bin Mohd Mahidin & Anor [Supra] and the case of Hock Hua Bank Bhd [Supra] and the case Seng Huat Hang Sdn Bhd & Ors v Chee Seng & Co Sdn Bhd [1987] 1 MLJ 413 where it was decided that the plaintiffs must explain to the court on why the matters alleged could not be brought forward in the original suit.

 

Decision

 

[20] I have carefully scrutinized the parties’ submissions. As decided by the Supreme Court in Bandar Builder Sdn Bhd v

 

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United Malaya Banking Corporation [1993] 3 MLJ 36, and also by the Federal Court in Lai Yoke Ngau & Anor v Chin Teck Kwee

 

& Anor [1997] 2 MLJ 565, that this summary procedure to strike out a claim under Order 18 rule 19 of the Rules of Court can only be adopted when it can be clearly seen that a claim or answer is on the fact of it “ obviously unsustainable”. So long as the pleadings, on the fact of it, discloses some cause of action or raised questions to be determined, the court would not strike out the same; even if it can be shown that the action is “weak” and not likely to succeed at trial.

 

[21] Bearing in mind the abovementioned principle, with due respect to the plaintiffs, after scrutinizing the cause papers, I agree with the defendant that the principle of res judicata shall apply in this case. In Huawei Tech Investment Co Ltd Transition Systems [Supra], the Court of Appeal held that:

 

“ (1) The claim of the respondent in the second suit had all the ingredients of the defence of res judicata, if not in the classic sense in which that doctrine was understood, then, most certainly in the wider sense namely, that it became an abuse of process to raise in subsequent proceedings matters which could and therefore should have been

 

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litigated in earlier proceedings. The learned trial judge ought to have struck out the respondent’s claim in the second suit summarily under the doctrine of res judicata unless there were ‘special circumstances’ allowing for the claim to proceed (see paras 12 &

 

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(3) Even if the causes of action were not identical so as to give rise to res judicata in the wider sense, there were no special circumstances to justify the commencement of the second suit by the respondent. The trial judge ought to have examined more closely the defence of res judicata raised by the appellant in their defence in the second suit. Failure to address this issue and the consequent finding of fact in the second suit that the goods had been rejected in Hong Kong, contrary to the trial judge’s finding in the first suit that the goods had not been shipped for return to Hong Kong, warranted appellate intervention.”

 

[22] Upon reading the plaintiffs’ Statement of Claim in this suit and their defence and Counter Claim in the 2011 Suit, I am satisfied that the issues raised by the plaintiff in this instant case are the same issues raised in the 2011 Suit. Even if the plaintiffs claim that causes of action are not identical, the plaintiffs have

 

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failed to show any special circumstances to justify the commencement of the present suit.

 

[23] In Asia Commercial Finance (M) Bhd v Kawai Teliti Sdn Bhd [1995] 3 MLJ 189, the Supreme Court held that:

 

“ (1) 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.

 

(2) 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. ”

 

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[24] Unlike the case of Hock Hua Bank [Supra] cited by the plaintiffs, the judgments in 2011 Suit had gone on appeal to the Court of Appeal. The plaintiffs surely had ample times and opportunity to submit fresh evidence at the Court of Appeal by virtue of section 69 of the Court of Judicature Act and rule 7(A) of Rules of the Court of Appeal if they really felt that there was material evidence that was not made available at the hearing of the High Court.

 

[25] Order 42 rule 13 of the Rules of Court 2012 inter alia provides that a party intending to set aside any judgment shall make an application within 30 days after the receipt of the judgment by him. In this instance, it was filed after about two years. The Federal Court in Serac Asia [Supra] case had held that once a regularly obtained judgment had been perfected, the court was functus officio and the matter was thus res judicata and could not be relitigated. In Hock Hua Bank’s case [Supra], the Federal Court held that a fresh action will lie to impeach the original judgment if the judgment was obtained by fraud.

 

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[26] As it is, the plaintiffs have not produced any material evidence to show the judgment was obtained as a result of deliberate fraud perpetrated on the court or by reason of deception on the court of by suppression of material evidence by the defendant. The mere suggestion of fraud or forgery was insufficient to have the plaintiffs’ complaint fully tried. Refer to Goh Hock Hai v Eon Bank Bhd [2012] 9 MLJ 656. Fraud must be actual fraud and the plaintiffs must also explain to the court why the matters alleged could not have been brought forward in the original proceedings. Refer to the case of Seng Huat Hang Sdn Bhd [Supra].

 

[27] As I mention earlier, the judgments in question had gone to the Court of Appeal. I have perused the Memorandum of Appeal for Summary Judgment as shown in Exhibit ‘NBG-7’ of enclosure 6, the Affidavit in Support of this application, and the Memorandum of Appeal for the plaintiffs’ Counter Claim as shown in Exhibit ‘NBG-13’ of enclosure 6; and find that the issues raised in this instant suit are similar as in the Court of Appeal. This include the issue of non-compliance of section 56 of the CBA when in para 7 of Exhibit ‘NBG -7’ the plaintiffs state that “ Yang Arif telah terkhilaf

 

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kerana gagal merujuk keesahan Perjanjian Istina’…. kepada Majlis Penasihat Syariah (Syariah Advisory Council) untuk keputusannya.” On the issue that the learned High Court Judge had failed to give proper consideration of the issues raised by the plaintiffs, hence violated the rules of natural justice; in paragraph 3 of the same memorandum, the plaintiffs had stated that the judge had failed to “ memberi pertimbangan atau tidak memberi pertimbangan yang mencukupi kepada hujahan dan otoriti perayu.” On HDA account, in paragraph 8, the plaintiffs had stated that the respondent “ telah menggunapakai dan menggangu akaun HDA Perayu Pertama secara tidak sah”. Refer also to paragraphs 1,2,7,8 and 9 of Exhibit ‘NBG-13’ of enclosure 6.

 

[28] Obviously, even if those issues raised now before this court were not raised before the learned High Court Judge in 2011 Suit, those issues had been raised before the Court of Appeal. The Court of Appeal had made its decision to affirm the decision of the learned High Court judge. Hence, the judgments that are being questioned now, are actually in my view, the judgments of the Court of Appeal too. By the principle of stare decisis, this court,

 

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being a High Court, is definitely bound by the decision of the Court of Appeal. Following that, clearly, this court cannot now set aside the judgments of the 2011 Suit which have clearly become the judgments of the Court of Appeal too.

 

[29] To me, not only the principle of res judicata applies, there shall be an end to the litigation as both parties have equally fair chance in the 2011 Suit, at the High Court as well the Court of Appeal, to put forth all evidence available for the court’s decision. The Federal Court in Serac Asia [Supra] stated that :

 

“ the judicial process rests on the twin pillars of certainty and finality. A final order or a judgment must therefore be vigorously protected by this doctrine.”

 

[30] I also agree with the defendant that the issue of malicious prosecution is also devoid of any merit since at all material time the defendant is entitled to execute the judgment that was properly obtained and had been fully adjudicated. To deny the right of the

 

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defendant to execute the judgment by filing fresh action is indeed an abuse of process of the court.

 

Conclusion

 

[31] Based on the above reasons, I allow the defendant’s application in enclosure 5. I am of the view, to allow the plaintiffs’ claim to proceed would be an abuse of process as it is clearly frivolous and vexatious. I am also of the opinion that this suit is really not necessary, a waste of time and energy and should not have been filed in the first place. I therefore order cost of RM10,000 to be paid by the plaintiffs to the defendant.

 

DATO’ ZALEHA BINTI YUSOF JUDGE

 

HIGH COURT OF MALAYA KUALA LUMPUR

 

Dated: 27th February 2015

 

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For the Plaintiffs: Malik Imtiaz Ahmed bin Ghulam Sarwar with

 

Alliff Benjamin bin Suhaimi and Pavendeep Singh a/l Gurbachan Singh; Messrs Thomas Phillip

 

For the Defendant: Syed Fadzil bin Hashim Al- Habshi with Amirus Anis bint Dzhory; Messrs Sidek Teoh Wong & Dennis

 

Bagi Defendan: Roseline Sheila a/p Thomas Cherian; Tetuan Abdullah & Zainuddin

 

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