594 Ringgit Resources Sdn Bhd v.

Zeus Development (Johor) Sdn Bhd [2005] 4 MLRH

RINGGIT RESOURCES SDN BHD

v.
ZEUS DEVELOPMENT (JOHOR) SDN BHD

High Court Malaya, Johor Bahru

Azahar Mohamed JC
[Civil Suit No: 22-753-2002(4)]
27 October 2005

JUDGMENT
This was an application by the defendant by way of this summons-in- chambers in
enclosure 71 pursuant to O. 18 R. 19 (1) (b) and (d) of the Rules of the High Court
1980 (the RHC) . The defendant had by this summons-in-chambers dated 13 July
2005 sought for an order that the plaintiff's application in enclosure 66 dated 9 Jun
2005 be struck out on the ground that the application was barred by the doctrine of
res judicata , it should not be adjudged again and so, the application was frivolous,
vexatious and an abuse of the court process. According to Malaysian High Court
Practice (Abridged 1999 Edition) at para 18.19.5, the most common instance of
matters, which are struck out on this ground are those that are res judicata .
To put things in proper context, I think it would be useful to narrate the factual
background relevant to this application. The plaintiff herein took out a summons
under O. 14A of the RHC in enclosure 14 dated 7 January 2003 in this proceeding
for the following orders:-
1) samada perjanjian jual beli yang di tandatangani oleh plaintif dan defendan
pada 27 Ogos 1997 itu sah atau tidak sah oleh kerana:-
a. Defendan bukanlah tuanpunya tanah (proprietor of the land) yang
menjadi "subject matter" semasa perjanjian tersebut dimenteraikan.
b. Defendan tidak mempunyai hak untuk menandatangani perjanjian
tersebut bagi pihak Tuanpunya Tanah (pihak ketiga).
c. Kegagalan Pihak Ketiga (Tuan punya tanah) dijadikan salah satu pihak
untuk menandatangani Perjanjian tersebut.

2) Oleh yang demikian plaintif menuntut daripada defendan:-

a. Wang deposit 10% sejumlah RM71,891.70 dikembalikan;
b. Faedah pada kadar 12% daripada tarikh pembayaran deposit di buat
pada 11 Julai 1997 sehingga tarikh penghakiman;
c. Faedah pada kadar 8% daripada tarikh penghakiman sehingga tarikh
[2005] 4 MLRH Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd 595

penyelesaian sepenuhnya; dan

d. Kos.

O. 14A that was introduced into the RHC by PU (A) 342/2000 states:
(1) The court may upon the application of a party or of its own motion
determine any question of law or construction of any document arising in
any cause or matter at any stage of the proceedings where it appears to
the court that:
(a) such question is suitable for determination without the full trial of
the action; and
(b) such determination will finally determine the entire cause or
matter or any claim or issue therein.

(2) Upon such determination the court may dismiss the cause or matter or
make such order or judgment as it thinks just.
(3) The court shall not determine any question under this order unless the
parties have had an opportunity of being heard on the question.
(4) The jurisdiction of the court under this order may be exercised by a
registrar.
(5) Nothing in this order shall limit the powers of the court under O. 18 r.
19, or any other provision of these rules.

O. 14A of the RHC enables the court to determine any question of law or
construction of any document where it appears to the court that such question is
suitable for determination without the full trial of the action and such
determination will finally determine the entire cause or matter or any claim or
issue therein. The most authoritative statement of the law on O. 14A is to be found
in the judgment of Mohd Noor Ahmad JCA (as His Lordship then was) in
Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu [2003] 1 MLRA 393; [2003] 4
CLJ 337 ; [2004] 1 MLJ 8).
The learned registrar allowed the plaintiff's application in enclosure 14 with costs
on 21 August 2003. It is relevant to reproduce the order of the learned registrar in
granting final relief of the plaintiff's claim, which was in the following terms:-
PERINTAH
ATAS PERMOHONAN pihak Plaintif yang dinamakan di atas di Lampiran
14 bertarikh 7hb Disember 2002 DAN SETELAH MENDENGAR Pn.
Nur'Aini bte Mohamed bagi pihak Plaintif dan En. Tan Khay Boon bagi
596 Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd [2005] 4 MLRH

pihak Defendan pada 26hb Jun 2003 dan ditetapkan untuk keputusan pada hari ini
dalam kehadiran En. Abdul Jalil bin Mohamed Peguamcara bagi pihak Plaintif
dan menyebut bagi pihak Defendan MAKA ADALAH PADA HARI INI
DIPERINTAHKAN bahawa:-
i) Perjanjian Jualbeli bertarikh 30hb. Ogos 1997 adalah terbatal / tidak
sah oleh kerana:-
a) Defendan bukanlah Tuanpunya Tanah yang menjadi "subject
matter" semasa Perjanjian tersebut dimeteraikan;
b) Defendan tidak mempunyai hak untuk menandatangani
perjanjian tersebut bagi pihak Tuanpunya Tanah; dan
c) Kegagalan Tuanpunya Tanah dijadikan salah satu pihak untuk
menandatangani Perjanjian tersebut.

ii) Wang deposit 10% berjumlah RM71,891.70 dikembalikan kepada

Plaintif; dan
iii) Faedah pada kadar 12% dibayar kepada Plaintif dari tarikh 11hb Julai
1997 sehingga tarikh penghakiman; dan
iv) Faedah pada kadar 8% dibayar kepada Plaintif daripada tarikh
penghakiman sehingga tarikh penyelesaian sepenuhnya.

DAN ADALAH AKHIRNYA DIPERINTAHKAN bahawa kos

permohonan ini dijadikan kos di dalam kausa.

Soon after, the defendant appealed to the judge-in-chambers against the learned
registrar's decision. On 16 August 2004, after hearing the appeal, I allowed the
defendant's appeal with costs. In my view, in the circumstances of this case, the
learned registrar had committed an error of law and had not acted in conformity
with established principles in granting final relief of the plaintiff's claim on the basis
of the. plaintiff's application in enclosure 14 without first ascertaining that the
plaintiff's proposed question of law and construction of document was suitable to
be determined without the full trial of the action. Hence, I had interfered with the
exercise of the learned registrar's discretion for the reason that the discretion had
not been exercised judicially. (See Tien Ik Sdn Bhd & Ors v. Kuok Khoon Hwong Peter
[1992] 1 MLRA 603; [1993] 1 CLJ 9 ; [1992] 2 MLJ 689). In this respect, I would
like to refer to Malaysian High Court Practice 2001 Desk Edition at para 14A.1.3
where the learned writers said:-
The question of law or construction must be suitable to be determined without
the full trial of the action. The test of whether the question of law or
construction is 'suitable' to be determined under this order is whether all the
[2005] 4 MLRH Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd 597

necessary and material facts relating to the subject matter of the question have been
duly proved or admitted, and 19 postulates that there is no dispute or no further
dispute as to the relevant facts at the time when the court proceeds to determine the
question. The suitability of disposing of an action under this order depends entirely
on whether the court can determine the question of law raised without a full trial of
the action.

It may be added that in an application under O. 14A , the question of law or

construction should be in clear and precise terms. All parties concerned must make
every effort to come to an agreement on all the necessary and material facts
relevant to the question of law or construction of documents that the court is
required to determine. Undisputed material facts may be derived from the
pleadings of both the parties in the action. I need hardly to say that in an
application under O. 14A there is no room for any dispute between the parties as to
the requisite material facts. It is only after the court has granted leave that the
question of law or construction raised is suitable and is able to be determined
without the full trial of the action, the court after that proceed directly to the next
stage, that is to say after hearing the parties, to determine the question of law and
dispose of the action as it thinks just.
Continuing with the factual background of the application in enclosure 71, on 4
January 2005 at the pre-trial case management conference with solicitors for both
the parties I had given specific directions to the parties to file in certain documents
on or before 5 April 2005. On 5 April 2005 at the 2nd pre-trial case management
conference both parties were further directed to file in their respective statements of
witnesses and I had fixed 4 July 2005 as further conference to ensure compliance
with the direction given. In the intervening time, the plaintiff took out another
summons dated 9 Jun 2005 in enclosure 66 pursuant to O. 14A of the RHC for
final relief of its claim as follows:-
1. Samada Perjanjian Jualbeli ("Perjanjian tersebut") yang ditandatangani oleh
plaintif dan defendan pada 30 Ogos 1997 itu sah atau tidak sah oleh kerana:-
(a) Defendan bukanlah Tuanpunya Tanah berdaftar ("Registered
Landowner") semasa Perjanjian tersebut ditandatangani.
(b) Defendan tidak mempunyai hak untuk menandatangani Perjanjian
tersebut bagi pihak Tuanpunya Tanah Berdaftar (Pihak Ketiga).
(c) Kegagalan defendan menjadikan Tuanpunya Tanah Berdaftar (Pihak
Ketiga) sebagai salah satu pihak untuk menandatangani Perjanjian
tersebut.

2. Oleh yang demikian plaintif memohon perintah Mahkamah dan menuntut

daripada defendan bahawa:-
598 Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd [2005] 4 MLRH

(i) Perjanjian bertarikh 30hb Ogos 1997 adalah tidak sah dari segi undang-undang;
dan
(ii) Wang deposit 10% berjumlah RM71,891.70 dikembalikan kepada
plaintif; berserta dengan
(a) Faedah pada kadar 12% daripada tarikh pembayaran deposit di
buat pada 11 Julai 1997 sehingga tarikh penghakiman; dan
(b) Faedah pada kadar 8% daripada tarikh penghakiman sehingga
tarikh penyelesaian sepenuhnya; dan
(c) Kos.

It will at once be noted that the plaintiff had previously filed an application in
enclosure 14 for similar final relief as stated in enclosure 66 and as I have said a
moment ago I had already decided on this matter on 16 August 2004.
It was against this background that I had to consider the defendant's application in
enclosure 71 to strike out the plaintiff's application in enclosure 66. In my
judgment, learned counsel for the defendant was entirely correct in his submission
that what the plaintiff was striving to do by filing enclosure 66 was effectively to
have this court hearing its application in enclosure 14 all over again. In responding
to the submissions made on behalf of the defendant, learned counsel for the
plaintiff failed to cite any authority to support her argument that the plea of res
judicata did not apply in this matter. In my judgment the questions now raised had
already been heard and finally decided on 16 August 2004. The plaintiff had no
right to re-agitate the same issue. The rule of res judicata will put a stop to this.
In this context, the authority that I would like to cite is the case of Hartecon JV Sdn
Bhd & Anor v. Hartela Contractors Ltd [1995] 2 MLRA 505; [1996] 2 MLJ 57; [1997]
2 CLJ 104; [1996] 2 AMR 1457 ; [1996] 2 AMR 1457. It is an important case on
the subject under discussion where the matter was dealt with extensively by the
Court of Appeal and in this regard I find that the judgment of His Lordship Gopal
Sri Ram JCA to be of direct relevance to the issue. I think it is imperative that I
repeat here in extenso what His Lordship said on this issue at pp. 1466-1467 of the
report as follows:-
The learned Judge, on October 13, 1993, was faced with an objection as to the
form of proceedings which had been adopted by the appellants. He came to
the conclusion that the form chosen by the appellants was not irregular.
Although that was a decision made on an interlocutory matter which was
purely procedural in nature it was nevertheless binding on the court and on all
parties to the Us until its reversal on appeal. In our judgment the decision of
the learned Judge overruling the respondent's preliminary objection rendered
[2005] 4 MLRH Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd 599

the point taken res judicata .

If authority is needed for the proposition which has commended itself to us, it
is to be found in Government of Malaysia v. Dato Chong Kok Lim[1973] 1 MLRH
318 ; [1973] 2 MLJ 74 which was drawn to the attention of counsel during
argument and in which there appears the following passage in the judgment of
Sharma J(at p. 76):
"In Satyadhyan Gosel and others v. Sint Deorajin Dobi and another AIR
[1960]941, the statement of the law on the subject is given thus:
'The principle of res judicata is based on the need of giving a finality
to judicial decisions. What it says is that once a res is judicata , it shall
be not adjudged again. Primarily it applies as between past litigation
and future litigation. When a matter - whether on a question of fact
or a question of law - has been decided between two parties in one
suit or proceeding and the decision is final, either because no appeal
was taken to a higher court or because the appeal was dismissed, or
no appeal lies, neither party will be allowed in a future suit or
proceeding between the same parties to canvass the matter again.
This principle of res judicata is embodied in relation to suits in section
11 of the Code of Civil Procedure; but even where section 11 does
not apply, the principle of res judicata has been applied by courts for
the purpose if achieving finality in litigation. The result of this is that
the original court as well as any higher court must in any future
litigation proceed on the basis that the previous decision was correct.
The principle of res judicata applies also as between two stages in the
same litigation to this extent that a court whether the trial court or a
higher court having at an earlier stage decided a matter in one way
will not allow the parties to re-agitate the matter again at a
subsequent stage of the same proceedings.
A decision given by a Court at one stage on a particular matter or
issue is binding on it at a later stage in the same suit or in a
subsequent suit. (See Pecreth v. Marriott [1883] 22 Ch D 182, Hock v.
Administrator-General of Bengal and Others LR 48IA 187 and In the
matter of the trusts of the will of Tan Tye (Deceased) Yap Liang Neo v.
Tan Yew Ghee and Another [1936] 1 MLRA 217 ; [1936] MLJ 141,
147-151). Parties cannot raise a second time in the same suit an issue
that has already been determined either expressly or by necessary
implication. (See Louis Dreyfus v. Aruna Chalayya LR 58 IA 381).
"(Emphasis added).
600 Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd [2005] 4 MLRH

Further on this issue, four years after the case of Hartecon JV was decided, His
Lordship Gopal Sri Ram JCA in Tenaga Nasional Berhad v. Prorak Sdn Bhd & Anor
[1999] 1 MLRA 604; [2000] 1 MLJ 479; [2000] 1 CLJ 553; [2000] 1 AMR 1071 ;
[2000] 1 AMR 1071 again made the same point when His Lordship cited and
applied the following passage from thes peech of Wigram V-C in Henderson v.
Henderson [1843] 67 ER at p. 1068-1087:-
Where a given matter becomes the subject of litigation in, and of adjudication
by, a court of competent jurisdiction, the court requires that parties to that
litigation to bring forward their -whole case, and will not (except under special
circumstances) permit the same parties to open the same subject of litigation
in respect of matter which might have been brought forward as part of the
subject in contest, but which was not brought forward, only because they
have, from negligence, inadvertence, or even accident, omitted part of their
case. 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.

Returning to the present case, the order of 16 August 2004 concerning enclosure 14
had been drawn up and perfected. I think it is important to keep in mind that there
was no appeal against that order. That is why it was a final order. In my judgment,
the matter was therefore res judicata and in the circumstances of this case the
plaintiff was barred from making the same application in enclosure 66.
To go further, in my judgment, once the first application (enclosure 14) was
dismissed, it was not open to the plaintiff to make a second application (enclosure
66) to set aside the judgment in the first application on a different ground. In this
regard the plaintiff in its affidavit affirmed on 23 August 2005 in enclosure 79
averred as follows:-
5. Walaupun demikian, saya telah dinasihatkan oleh Peguamcara plaintif
bahawa keputusan Yang Ariff Hakim pada 16/8/2004 membenarkan rayuan
defendan itu ialah kerana pihak plaintif tidak mengikut peraturan dan
bersandarkan bahawa kedua-dua pihak belum lagi mempersetujui keatas
isu-isu yang akan berbangkit untuk perbicaraan melalui Pengurusan Kes
Sebelum Perbicaraan ("Pre-Trial Case Management"). Mahkamah yang mulia
itu tidak pada bila-bila masa pun pernah mendengar merit rayuan defendan
dan atau mendengar plaintif sepenuhnya dengan atau membaca Afidavit
Sokongan Plaintif atau Afidavit Defendan untuk menentukan merit-merit bagi
permohonan dibawah Aturan 14A RHC

I was of the view that it was not permissible for the plaintiff to ask for a further
hearing merely because it had thought of a possible new ground that it had
 [2005] 4 MLRH Ringgit Resources Sdn Bhd v. Zeus Development (Johor) Sdn Bhd 601

originally overlooked. In my judgment, the plaintiff's only" available remedy was

by way of an appeal to the Court of Appeal against the order of 16 August 2004.
In the result, I had allowed the defendant's application (enclosure 71) to strike out
plaintiff's application (enclosure 66) with costs for the reason that the plaintiff's
application on the face of it was obviously unsustainable. To expedite the disposal
of this action, this court has fixed 13 July 2006 for the full trial of the plaintiff's suit
against the defendant after the respective parties have filed in all the bundles of
documents and statements to be used at the trial.

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