THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 180 ENGLISH

Lim Thian Huat and Another v MBF Holdings Berhad and Another, and 7 Other Appeals
Suit Number: Civil Appeal Nos. W-02(IM)(NCC)-1936-11/2015, W-02(IM)(NCC)-1938-11/2015, W-02(IM)(NCC)-1950-11/2015, W-02(IM)(NCC)-1951-11/2015, W-02(IM)(NCC)-1977-12/2015, W-02(IM)(NCC)-1978-12/2015, W-02(IM)(NCC)-2022-12/2015 & W-02(IM)(NCC)-2089-12/2015 

Litigation & court procedure – Whether the defendants could in law apply for and be granted an order under Order 33 rule 2 of the Rules of Court 2012 having previously failed in their application for an order under Order 14A – Whether the defendants’ applications under Order 33 rule 2 were barred by res judicata on the ground that their previous applications under Order 14A had been determined

JUDGMENT

[1] There were five appeals before us. Appeal No. W-02(IM)(NCC)-1936-11/2015 was an appeal by Lim Thian Huat and Chew Cheng Leong (D8 and D9), Appeal No. W-02(IM)(NCC)-1938-11/2015 was an appeal by Datin Chong Kwei Kee (D2), Appeal No. W-02(IM)(NCC)-1950-11/2015 was an appeal by Dato’ Loy Teik Ngan and Puan Sri Datin Ling Mah Lee (D1 and D3), Appeal No. W-02(IM)(NCC)-1977-12/2015 was an appeal by Tan Sri Dato’ Mohd Ibrahim Bin Mohd Zain and Shaikh Mohd Bin Mohd Zain (D10 and D11), and Appeal No. W-02(IM)(NCC)-1978-12/2015 was an appeal by Tan Sri Dato’ Lim Cheng Pow (D4).

[2] All five appeals were against the decision of the High Court dismissing their applications under O 33 r 2 of the Rules of Court 2012 (“the Rules”), which reads:

“2. The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.”

[3] Having given careful consideration to the arguments of the parties, both written and oral, we unanimously allowed the appeals. These are our grounds.

[4] The principal issue for our consideration was whether the defendants could in law apply for and be granted an order under O 33 r 2 of the Rules having previously failed in their application for an order under O 14A.

[5] In the court below, the issues raised by the defendants were as follows:

(i) Whether by the Consent Order dated 29.9.2009 entered in CS No. D3-22-1497-2004 (“the Consent Order”) and the solicitors’ letter dated 30.9.2009, the plaintiffs had settled or compromised all claims in these proceedings against the defendants, and/or

(ii) Whether the release of D1 and D3 released all claims made against the other defendants and/or whether the plaintiffs were estopped or otherwise precluded from bringing these proceedings against all the defendants.

[6] The facts giving rise to these appeals are set out in paragraphs [2] to [4] of the learned judge’s grounds of judgment, which we reproduce below for ease of reference:

“[2] These applications are similar to previous applications which were decided by the High Court and the Court of Appeal then. First, similar applications were filed in the High Court earlier and subsequently upon the decision of the said High Court, the Court of Appeal heard the appeal and decided on the applications. In essence these applications have been decided before. Not once but twice, both at the High Court and later at the Court of Appeal as explained. As proof, Paragraph 3 of the grounds of judgment of the Court of Appeal then dated 20 November 2014 states;

“The Defendants’ applications were brought pursuant to order 14A and/or order 33 of the Rules of Court 2012...”

[3] Further, reference is made to Paragraph 2 of the 1st and 3rd Defendant written submission for the present application. They admitted they had previously before the High Court applied under Order 33 for the two questions to be determine. The High Court then had decided the application on 12 June 2013. Subsequently this decision of the High Court went on appeal and the Court of Appeal decided on the appeal and gave the grounds of judgment dated 20 November 2014 as explained above.

[4] Also reference is made to Paragraph 12 of the Plaintiffs’ written submission regarding the applications now where it is stated, there is no dispute the Defendants previous applications and the present applications have being moved pursuant to Order 33.”

[7] In dismissing the defendants’ application, the learned judge relied on the following grounds:

(1) The defendants’ applications were res judicata, given that similar applications had been filed and decided by the High Court earlier, which went up on appeal to the Court of Appeal.

(2) Alternatively, the applications were res judicata for the reason that they ought to have been filed with the defendants’ earlier applications under O 14A of the Rules; and

(3) The summary disposal of the suits by way of O 33 of the Rules was not suitable given that there are conflicting allegations of fact interwoven with legal issues and the parties were strangers to High Court Civil Suit No. D3-22-1497-2004 where the Consent Order (which was the subject matter of the applications) was recorded.

[8] In arriving at his decision, the learned judge relied heavily on the Federal Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, with specific reference to the following observations by Peh Swee Chin FCJ delivering the judgment of the court:

“What is res judicata? It simply means a matter adjudged, and its significance of res judicata lies in its effect of creating an estoppel per rem judicatum, which may take the form of either cause of action estoppels or issue estoppels. The cause of action estoppels 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, that is the cause of action, merges into the said final judgment. The issue estoppels, on the other hand, means simply an issue which a party is stopped from raising in a subsequent proceeding...”

[9] With due respect to the learned judge, his reliance on Asia Commercial Finance is misplaced. In order for res judicata to apply, there has to be a final ruling or judgment on an issue. The previous decision of this Court was obviously grounded on its view that O 14A was not a suitable mode by which the preliminary questions posed may be answered, the effect of which was that the defendants are barred from filing new applications under O 14A to determine the same preliminary questions.

[10] What needs to be borne in mind is that this Court in that appeal did not determine those preliminary questions. It consciously avoided a determination of the questions as it was of the view that oral evidence was needed before there could be a determination.

[11] Clearly, an application under O 14A of the Rules is intrinsically different from one that is made under O 33 r 2. Thus, a party having pursued a matter by way of O 14A is not barred from subsequently pursuing the same by way of a summary trial, which is exactly what O 33 r 2 was designed for.

[12] The authority on point is the English Court of Appeal case of Patrick John Brain v Ingledew Brown Bennison & Garret (A Firm) [1996] FSR 23, where the court recognized the different purposes of the English O 33 and O 14A, both of which are in pari materia with our equivalent provisions. In that case the plaintiff alleged threats of patent infringement proceedings contained in a letter written by the 1st defendant, a firm of solicitors, on behalf of their client the 2nd defendant.

[13] The 1st defendant applied to strike out the statement of claim. However, instead of dealing with the 1st defendant’s application, the High Court judge by his own motion proceeded under O 14A and granted 4 declarations in favour of the plaintiff. The Court of Appeal held that while the High Court judge was right in granting the first declaration, which involved a pure question of law, the other three could only be resolved by findings of fact.

[14] By parity of reasoning, when this Court allowed the plaintiffs’ appeal against the High Court decision allowing the defendants’ previous O 14A applications, it did not and could not preclude the defendants from making another application under O 33 r 2 to determine facts which this Court felt were necessary before the questions posed may be determined.

[15] There can be no argument that in allowing the plaintiffs’ appeal, this Court acted on the premise that the learned High Court judge ought not to have answered the questions summarily as they were questions of mixed fact and law. This is what the Court said:

"The particular issue that fell for determination by the High Court as identified above, therefore could not be answered by a mere ex-facie reading of the Consent Order and its terms. The divergent positions canvassed to be given to the terms of the 2009 Consent Order, in our view, had to be tested against direct evidence of the parties who negotiated the terms of the 2009 Consent Order, including the principal players in that episode in court, namely Dato’ Loy Teik Ngan, Tan Sri Morgan and possibly their legal and other advisors.”

[16] Further, while accepting that the intention of the parties to the Consent Order ought to be assessed from the language of the Consent Order, the Court at the same time took the following view:

“[I]t was established that extrinsic evidence could be accepted by the court to determine the factual context and the parameters of the exact dispute that formed the background to the recording of the 2009 Consent Order. This would include evidence as to the ‘aim’ of the transaction concerned (here the entering of the 2009 Consent Order).”

[17] O 33 r 2 of the Rules confers on the court wide powers to direct the trial of preliminary issues, whether fact or law, at any point during the course of the trial. In Petroliam Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8 this Court in dealing with the principles applicable to an application under O 33 r 2 explained at page 106 paragraph 35:

“[35] ... Clearly, it demonstrates the lack of appreciation of the scope and efficacy of O 14A and O 33 r 2 and the distinction between them. Under the former, the entire cause or matter need not be finally determined...And the latter caters not only for the question or issue of law arising in a cause or matter to be tried but also of fact or partly of fact and partly of law, and also the entire cause or matter need not be finally determined. In spite of the similarities between the two orders, there are also differences between them otherwise the former would not have been introduced into our civil procedure...It is manifestly evident that the court has a wide discretion on the matter...”

[18] At paragraph 16, the Court went on to say:

“[16] Order 33 r 2 of the RHC states that the court may order any question or issue arising in any cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. The Federal Court in Palaniappa Chettiar v Sithambaram Chettiar & Ors [1982] 1 MLJ 186 agreed with the learned judge in holding that it would be convenient to try the preliminary issue, as if the contention of the respondents was upheld, that could conclude the whole proceedings and it would be unnecessary to try the other issues. In SI Rajah & Anor v Dato’ Mak Hon Kam & Ors [1993] 3 MLJ 741, Lim Beng Choon J, after considering a large number of authorities on the ambit of O 33 r 2 and its equivalent, stated that before deciding to allow the preliminary questions to be raised, the court must bear in mind the following observations:

a) as a general rule, the court will exercise its power under O 33 r 2 if and only if the trial of the question will result in a substantial saving of time and expenditure which otherwise would have to be expended should the action go to trial as a whole;

b) an order under the said rule should not be made in respect of matters which by reason of the obscurity either of the facts or the law ought to be decided at the trial of the suit;

c) preliminary points of law have been described as toe (sic) often of so-called issues of fact, the justification is even harder to discern;

d) a preliminary question should be carefully and precisely framed so as to avoid difficulties of interpretation as to what is the real question which is being ordered to be tried as a preliminary issue.”

[19] The position in Singapore can be seen in the Singapore Court of Appeal case of Federal Insurance Co v Nakano Singapore (Pte) Ltd [1992] 1 SLR 390, which was followed by this Court in Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2007] 7 MLJ 706. In that case, it was held that O 33 r 2 of the Rules of the Supreme Court 1970 (in pari materia with O 33 r 2 of the Rules) applies to the determination of fact, even if disputed. The court observed at page 116:

"Thirdly, we are in full agreement with counsel with respect to the powers of the court under O 33 r 2 of the RSC. That rule expressly provides that the court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law to be tried before at or after the trial of the cause or matter. It would be contrary to the express terms of that rule for a court to hold that it has no power to state a preliminary point even if it involves having to determine some issues of fact in order to determine the point of law. An action may involve many disputes on the facts as well as on the law, some more complex than others. It may be that the determination of a preliminary point in one way may make it unnecessary for the other more complex issues of fact or law to be decided, thus resulting in saving of time and expense of a protracted trial on those issues.”

[20] On the facts, we were of the view that the defendants’ application under O 33 r 2 of the Rules ought to have been allowed by the learned judge. What is apparent is that these applications by the defendants satisfied the central test in Petroliam Nasional (supra), namely that there would be a “substantial saving of time and expenditure” and for that reason the application ought to be allowed.

[21] In the circumstances and having regard to the position of the law on the subject, we were constrained to hold that the learned judge was wrong in holding that the defendants’ applications under O 33 r 2 of the Rules were barred by res judicata, on the ground that their previous applications under O.14A had been determined by this Court.

Signed

ABDUL RAHMAN SEBLI
Judge
Court of Appeal Malaysia

Dated: 1 June 2018.

COUNSEL

For the Appellants in suit (1936): S Suhendran (Tarrina Hussein with him) of Messrs Chua & Associates

For the Appellant in suit (1938): Ranjit Singh (Villie Nethi with him) of Messrs Ranjit Singh & Yeoh

For the Appellants in suit (1950): Robert Lazar (Gopal Sreenevasan and Tan Shang Neng with him) of Messrs Sreenevasan Young

For the Appellant in suit (1951): Saranjit Singh (Hoe Mei Lee with him) of Messrs Saranjit Singh

For the Appellants in suit (1977): Tan Hui Xian (Ariel On with her) of Messrs Chooi & Company

For the Appellant in suit (1978): Ambiga Sreenevasan (P. Gananathan with her) of Messrs Gananathan Loh

For the Appellants in suit (2022): Razlan Hadri of Messrs Gan Ho & Razlan Hadri

For the Appellants in suit (2089): Saranjit Singh (MOB) of Messrs Bodipalar Ponnudurai De Silva

For the Respondents: Tommy Thomas (CS Kumar and Elizabeth Verghis with him) of Messrs Kumar Partnership

Legislation referred to:

Rules of Court 2012, Order 14A, Order 33, Rule 2

Rules of the Supreme Court 1970 (Singapore), Order 33 Rule 2

Judgments referred to:

Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189

Federal Insurance Co v Nakano Singapore (Pte) Ltd [1992] 1 SLR 390

Patrick John Brain v Ingledew Brown Bennison & Garret (A Firm) [1996] FSR 23

Petroliam Nasional Bhd v Kerajaan Negeri Terengganu [2004] 1 MLJ 8

Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2007] 7 MLJ 706

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