(‘the said cheque’) with HTF. However, the appellant and KAH failed to secure the JV agreement
between LPPB and the respondent and HTF thereupon presented the said cheque to the bank for
payment but was dishonoured. The respondent demanded the refund of the sum of RM2.3m from the
Kerajaan Malaysia v Mat Shuhaimi Bin Shafiei [2018] MYFC 2
appellant and KAH. The appellant and KAH failed to refund the amount. HTF thus commenced an
action against Cosmotine (‘the HTF suit’) for the recovery of the sum of RM2.3m and entered
summary judgment against Cosmotine. The respondent meanwhile, commenced the present action
against the appellant and KAH for the recovery of the sum of RM2.3m and obtained summary
judgment against KAH. With regard to the action against the appellant, the respondent applied for a
question of law to be determined pursuant to O 14A of the Rules of Court 2012. The questions
proposed were in the following manner: whether in view of the HTF suit, the respondent’s cause of
action against the appellant was prohibited by the principle of estoppel, res judicata and doctrine of
merger of cause of action. The learned judge answered the questions posed in the negative and
proceeded to enter judgment against the appellant. In allowing the appellant’s appeal, the Court of
Appeal said:
“[25] In the present appeal, since the present action would undoubtedly involve going over
precisely the same facts as in the previous HTF suit, and accepting the broader approach and the
wider sense of res judicata as the preferred and correct legal position, the fact that the parties to
this suit are different from the HTF suit does not disentitle the appellant to invoke the doctrine of
issue estoppel to bar the respondent from relitigating a specific issue that had been decided in
the prior separate action. The doctrine also applies to a nonparty. It is therefore not necessary
for parties to be the same in both actions. What the doctrine seeks to prevent is an abuse of the
process of the court by attempting to make a double claim as well as allowing the plaintiff to
relitigate its cause for the same relief and based on the same subject matter for which judgment
had successfully been obtained in the HTF suit and to produce the same set of facts, the same
witnesses and the same documents (see Seruan Gemilang Makmur Sdn Bhd v Badan
Perhubungan UMNO Pahang Darul Makmur).
[26] We would emphasise at this juncture that the present action could have been included in the
HTF suit by reason of the fact that the relief, evidence relied on and the witnesses are the same.
In truth, the claims and relief sought in both suits share one common object which is the refund
of RM2.3m from Cosmotine, the appellant and KAH which amount became liable to be refunded
as a result of the alleged breach of the agreement. The only difference lies in the cause of action.
...
…
[28] ... what the respondent had done in effect was to divide its case into two separate claims and
in the process proceed in two stages in order to suit its convenience while in actuality it was
claiming for the same relief based on the same facts for which judgment had already been
obtained earlier in the HTF suit. It cannot 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 double claim by filing two separate actions for the same relief. In our
judgment the instant action is an abuse of the process of the court (see also North West Water Ltd
v Binnie & Partners (a firm)).
[29] We would further add at this point that, even if there has been no actual decision as to the
issues involved in the instant action, but if the respondent did not raise these issues in the earlier
proceedings which it could and should have done so, in our view the plea of this doctrine of res
judicata in its amplified and wider sense is available to the appellant to prevent an abuse of the
process of the court. We would refer to the Supreme Court decision in Superintendent of Pudu
Prison & Ors v Sim Kie Chon [1986] 1 MLJ 494; [1986] CLJ (Rep) 256:
MALAYSIAN JUDGMENTS
Page: 10 of 39
It would suffice in this regard to refer to the judgment of the Privy Council in Brisbane City
Council and Myer Shopping Centres Pty Ltd v AttorneyGeneral for Queensland [1979] AC
411��(at p 425).
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