The Respondent's claim was barred by res judicata as the cause of action had merged with a prior judgment, and the limitation period for the claim had expired.

Ong Chee Kwan J:

Introduction

[1] This judgment arose from the Appellants' appeal against the decision of the learned Sessions Court Judge given on 19 August 2024 dismissing the Appellants' Notice of Application made pursuant to O 14A r 1 and or O 33 rr 2 and 5 of the Rules of Court 2012 posing 2 legal questions for determination. The learned Session Court Judge had answered in the negative both the questions which are set out below.

[2] After hearing oral submissions from counsel and perusal of the relevant cause papers, I allowed the appeal with costs.

Background Facts

[3] The Appellants obtained a housing loan facility of RM150,000.00 from the Respondent to purchase a parcel of vacant bungalow land in Batang Kali ("the Property") sometime on 11 July 2001 ("the Loan Facility").

[4] Sometime in late May 2003, the Appellants received a letter of demand from the Respondent recalling the Loan Facility in its entirety and demanded the repayment of the entire outstanding sums thereunder.

[5] The Respondent subsequently filed a civil action against the Appellants vide Kuala Lumpur Sessions Court Suit No 1252-9451-03 ("the First Suit") and obtained an Amended Judgment in Default on 14 July 2003 for the entire outstanding sum claimed under the Loan Facility ("Amended Judgment in Default").

[6] On 24 June 2015, nearly 12 years after the Amended Judgment in Default, the Respondent applied for leave to enforce the said judgment. Leave was initially allowed by the Sessions Court but on appeal, the High Court set aside the order granting leave with costs. The Respondent's appeal to the Court of Appeal against the High Court's decision was dismissed with costs on 9 December 2016.

[7] Some 6 years later, on 15 March 2023, the Appellants received a letter from the Respondent's solicitors enclosing a Writ and Statement of Claim dated 7 March 2023 in respect of the suit herein claiming again the entire outstanding sum under the Loan Facility but less the proceeds of sale of the Property ("the Present Suit").

[8] Before the Session Court, the Appellant filed an application under O 14A and O 33 rr 2 and 5 of the Rules of Court 2012 ("ROC 2012") for the following Proposed Questions of law to be determined:

i. whether the Respondent's Present Suit is barred by the doctrine of res judicata by virtue of the First Suit, which was finally determined by the Court of Appeal on 9 December 2016;

ii. whether the Respondent's Present Action is barred by the doctrine of limitation pursuant to ss 6 and or 21 of the Limitation Act 1953 .

[9] The learned Sessions Court Judge had answered both the questions in the negative and being dissatisfied, the Appellants had appealed to this Court.

Court's Considerations

[10] The Proposed Questions are questions of law based on undisputed facts. There is no dispute that this is a fit and proper case for disposal of the Present Suit pursuant to O 14A r 1 and or O 33 rr 2 and 5 of the ROC 2012 as the Proposed Questions would finally and fully dispose of this case if answered in the affirmative [See: Petroleum Nasional Bhd v. Kerajaan Negeri Terengganu & Another Appeal 2003 MarsdenLR 1275 ; 2003 MarsdenLR 1685 ; ; ; Ramba Bungkong & Ors v. Asco Green Sdn Bhd & Another Appeal 2020 MarsdenLR 1281 ; [2020] 6 MLJ 414; ; [2020] 5 AMR 891; Eupe Bangsar South Development (JV) Sdn Bhd v. Lam Sai Yih [2022] MLRHU 2344; [2023] 9 MLJ 392; [2023] 1 CLJ 194].

[11] In the Present Suit, the Respondent's claims are founded on the same breach of the Loan Facility, the only difference being the sum claimed is for the entire outstanding but less the sale proceeds of the Property.

[12] The learned Session Court Judge found that the Respondent had a new cause of action for the balance outstanding sum due under the Loan Facility after the sale of the Property and the proceeds of sale deducted from the original outstanding sum. In holding the same, the learned Sessions Court Judge had relied on Tan Kong Min v. Malaysian Nasional Insurance Sdn Bhd 200