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2024 MarsdenLR 1496
HIGH COURT MALAYA KUALA LUMPUR
NG EK HOCK @ OOI EK HOCK & ORS – Appellant
Versus
SEE THOO SENG FOOK @ SOO THO SONG FOOK & ORS – Respondent
[Civil Suit No: 21NCvC-89-12/2013 & Implementation No: WA-37J-35-05/2023]
The principle of res judicata bars relitigation of issues previously determined, affirming the dismissal of a Judgment Debtor Summons as an abuse of process.
Headnote:(A) Res Judicata - Appeal to Judge in Chambers under O 56(1) RC 2012 - Dismissal of Judgment Debtor Summons (JDS) for abuse of process - Previous judgment in JDS-1 established JD2's liability for RM292,000.00, which JC failed to appeal - Principle of res judicata bars relitigation of the same issue. (Paras 1, 2, 5, 10, 12, 17)
(B) The court found no appealable error in the learned Senior Assistant Registrar's decision, affirming the dismissal of the JDS-2 based on res judicata and abuse of process. (Paras 10, 17)
Facts of the case:
The JC appealed the SAR's dismissal of JDS-2, which sought the entire judgment sum from JD2's estate, previously determined in JDS-1. (Paras 1-4)
Findings of Court:
The SAR's decision was affirmed, as the JC's attempts to claim the full judgment sum were barred by res judicata due to the finality of JDS-1. (Paras 10-12)
Issues: Whether the SAR's dismissal of JDS-2 was correct and sustainable given the principle of res judicata. (Paras 10, 12)
Ratio Decidendi: The court ruled that the JC could not relitigate the issue of JD2's liability as it had been previously settled in JDS-1, and the current JDS-2 constituted an abuse of process. (Paras 10-12)
Result: Appeal dismissed with costs of RM3,000.00. (Paras 2, 17)
JUDGMENT
(Appeal To Judge In Chambers - L.21)
Introduction
[1] The Judgment Creditor/JC (Pemiutang Penghakiman):
(1) Dissatisfied with the decision of the learned Senior Assistant Registrar (SAR) on 29 August 2023 dismissing the Judgment Debtor Summons (JDS) dated 3 May 2023 on the ground of res judicata is appealing the said decision to the Judge in Chambers against it under O 56(1) RC 2012 for a rehearing of the said matter citing: Milik Perusahaan Sdn Bhd & Anor v. Kembang Masyur Sdn Bhd; ; [2003] 1 CLJ 12, CA; Seloga Jaya Sdn Bhd v. Pembenaan Keng Ting; [1994] 1 MLRA 179; [1994] 2 MLJ 97 [1994] 2 CLJ 716; [1994] 2 AMR 1232, SC; Jamaludin Jaafar v. Affin bank Bhd & Anor Appeal; [2016] 12 MLJ 88; [2017] 2 CLJ 547, CA.
[2] On 29 April 2024, after duly considering the cause papers and arguments by the respective learned counsels, I found no appealable error in the learned SAR's decision. Consequently, I determined that appellate intervention is not warranted, and L.21 is dismissed with costs of RM3,000.00 payable within 30 days from the date hereof.
[3] Aggrieved, the JC appealed my decision, and my reasons are as follows:
Brief Facts
[4] The facts can be summarised as follows:
4.1 The first JC (JC1) is the father of the second JC (JC2) and third JC (JC3).
4.2 In December 2013:
(1) The JC filed a suit against the first and second Judgment Debtors (JD1 and JD2) in the Kuala Lumpur High Court vide Suit No 21NCVC-89-12/2013 (Suit).
(2) After a full trial, the High Court awarded a final judgment in favour of the JC and held JD1 and JD2 liable for fraud and conspiracy against the JC1 and JC2 and ordered that a Registrar assess the quantum of damages (encl 2: exh. N-1).
4.3 On 22 December 2015, the Registrar assessed the damages (encl 2: exh. N-2):
(1) Dissatisfied with the Registrar's Order, the JC appealed to the Judge in Chambers.
(2) On 14 April 2016, the learned High Court Judge set aside the entire Registrar's Order and granted the JC damages of RM500,000.00 subject to 5% interest p.a. full settlement (encl 2: exh. N-3).
4.4 On 22 March 2016:
(1) JD2 passed away on 22 March 2016 (encl 2: exh. N-4).
(2) The management of his estate was entrusted to Rockwills Trustee Berhad (RTB) as its sole executor, Grant of Probate dated 30 June 2016 (encl 7: exh. LMS-1).
(3) The JC alleged that JD2 has a surplus of assets and, through their solicitor, had approached RTB to settle the judgment debt as ordered by the High Court but to no avail.
4.5 The RTB averred that in its capacity as executor of JD2, RTB had on numerous occasions repeatedly informed JC that there were insufficient funds in JD2's estate to settle the deceased's Judgment debt in full and more time was required to liquidate JD2's immovable properties which are unattractive to potential purchasers.
The Judgment Debtor Summons (JDS)
[5] First JDS (JDS-1) Against RTB (WA-37J-29-12/2016)
5.1 The JC filed JDS via WA-37J-29-12/2016 against RTB:
(1) On 14 May 2018, after the hearing, the learned SAR had ordered that JD2 was only liable to pay half of the judgment debt under the Judge's Assessment Order, amounting to RM292,000.00 and RM1500.00 costs (BOD L.6: p 88/PDF p 92).
(2) The JC elected not to appeal the decision of the JDS-1, rendering it final conclusive between the parties.
(3) Partial settlement of judgment debt:
(a) The JC acknowledged they had received payment of RM120,000.00 from RTB as follows:
(i) On 16 April 2019: RM70,000.00, and
(ii) On 2 June 2020: RM50,000.00.
(4) The facts from RTB showed they managed to pay the sum of RM120,000.00 after successfully disposing of some of the properties in JD2's estates. Efforts are continuing to meet the JDS-1 ordered amount of RM292,000.00, which remained binding between JC and RTB/JD2
5.2 Second JDS Against RTB (JDS-2) (WA-37J-35-05/2023)
(1) On 3 May 2023, the JC filed the present JDS constituting a second JDS via WA-37J-35-05/2023 against RTB, claiming that RTB to pay the Judgment Debt dated 14 April 2016 for RM500,000
