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2023 MarsdenLR 2136
HIGH COURT MALAYA KUALA LUMPUR
KS LEE ENERGY LLP – Appellant
Versus
TOYO INK GROUP BERHAD – Respondent
[Writ Summons No: WA-22NCVC-202-04/2023]
Entitlement to a success fee is contingent on meeting contractual conditions; unjust enrichment claims are barred where a clear contractual basis exists.
Headnote:(A) Rules of Court 2012 - Order 14A and Order 33 Rules 2 and 5 - Project Success Fee Agreement - Claim for project success fee dismissed as plaintiff failed to prove entitlement under the agreement. Court ruled that entitlement to a success fee is contingent on meeting contractual conditions, which were not satisfied. The court also found that the claim was barred by res judicata due to prior proceedings. (Paras 1-130)
(B) Legal Principles - A success fee contract is unilateral; entitlement depends strictly on contract terms. Claims in unjust enrichment or quantum meruit are not permissible where a clear contractual basis exists. (Paras 73-89)
(C) Res Judicata - A claim is barred if it could have been raised in earlier proceedings, emphasizing the need for finality in litigation. (Paras 95-121)
Facts of the case:
The defendant filed for dismissal based on three proposed questions regarding the plaintiff's claims for project success fees and special damages under a Project Success Fee Agreement. The plaintiff argued the existence of factual disputes and denied res judicata.
Findings of Court:
The court found no evidence of entitlement to the claimed fees, as the necessary conditions were unmet. It also ruled that the plaintiff's claims were barred by res judicata due to a previous similar suit.
Issues: The court addressed whether the plaintiff's claims were valid under the Project Success Fee Agreement and if they were barred by res judicata.
Ratio Decidendi: The court concluded that the plaintiff did not meet the contractual conditions for the success fee and that the claims were precluded by prior litigation.
Result: Plaintiff's suit dismissed with costs awarded to the defendant.
| Table of Content |
|---|
| 1. application for preliminary issues by toyo. (Para 1 , 2 , 3) |
| 2. ks lee's opposition based on disputed facts. (Para 4 , 5 , 6) |
| 3. understanding of order 14a and order 33. (Para 8 , 10 , 12) |
| 4. undisputed facts regarding the project. (Para 18 , 19 , 20 , 21 , 22 , 23) |
| 5. ks lee's claims against toyo. (Para 36 , 37) |
| 6. entitlement to fees based on contract terms. (Para 74 , 79 , 84 , 89) |
| 7. res judicata as a defense. (Para 94 , 95 , 96) |
| 8. court's final decision and order. (Para 126) |
Introduction
[1] The defendant, Toyo Ink Group Berhad ["Toyo"], has filed a Notice of Application dated 15 June 2023 in encl 8 under O 14A and O 33 rr 2 and 5 of the Rules of Court 2012 for Disposal of Case on Point of Law or Preliminary Issues as set out in 3 Proposed Questions. ("Proposed Questions")
[2] The 3 Proposed Questions framed by Toyo are as follows:
(a) Having regard to the plaintiff's pleaded case in the Statement of Claim, whether the plaintiff has made out a case for its claim for project success fee pursuant to the terms of cl 4.2 of the Project Success Fee Agreement dated 28 January 2018 ("Proposed Question (a)");
(b) If the answer to Issue (a) is in the negative, whether the plaintiff is entitled to claim special damages being the professional success fees which the plaintiff would ordinarily be entitled to earn for the services rendered, having regard to the terms of the Project Success Fee Agreement dated 28 January 2018 ("Proposed Question (b)"); and
(c) Whether the plaintiff's claim is barred by the wider doctrine of res judicata in view of its failure to bring this claim in Kuala Lumpur Sessions Court Suit No: WA-B52NCvC-347-08/2022 ("Proposed Question (c)").
[3] Toyo contends that if I answer the first two of the 3 Proposed Questions or all three of the Proposed Questions in favour of Toyo, the plaintiff's action should be dismissed with costs. Trial will be dispensed with.
[4] The plaintiff, K.S. Lee Energy LLP ("KS Lee"), opposes the application on these grounds [See encl 54 Plaintiff's Written Submissions paragraphs 2.4 to 2.5]:
i. The 1st and 2nd Questions involve mainly determination of questions of facts that are substantially in dispute and intertwine with the issue of construction of the Project Success Fee Agreement and other legal issues raised by the parties. The plaintiff puts up three alleged disputes of fact [See encl 54 plaintiff's Written Submissions para 4].
ii. The 3rd Question, though a question of law, requires factual determination and in any event is unmeritorious.
[5] The issue before me is whether KS Lee has successfully raised disputes of fact to defeat Toyo's application when the evidence shows that KS Lee's principal, one Dr David Lee was in fact the Tok Dalang, in the sense of a master puppeteer in traditional Wayang Kulit or shadow play in English, advising Toyo behind the scenes in the project in question.
[6] The first two of the 3 Proposed Questions will also require me to consider whether a recent 3 - 2 decision of the UK Supreme Court in Barton v. Morris and another (in place of Gywn Jones, deed) [2023] AC 684 on a success fee agreement should be followed in Malaysia.
[7] I heard counsel on 15 September 2023 and 21 September 2023. Decision was reserved to 4 October 2023. I thank counsel for their helpful and thorough submissions which have greatly crystallised my thoughts.
The Law On Order 14A And Order 33 Rules 2 And 5 Rules Of Court 2012
[8] Learned lead counsel for the defendant Tan Sri Tommy Thomas had framed his case under both O 14A and O 33 rr 2 and 5 of the Rules of Court 2012. When asked by me as to which Order he is relying on for the three Proposed Questions, he declined to make an election. He said that no courts had asked him to make an election prior to my query. On hindsight, I should have perhaps asked learned counsel to provide guidance to the Court.
[9] There are subtle differences between O 14A and O 33 r 2 of the Rules of Court 2012.
The Law On Order 14A Rules
