A judgment can be impeached if proven obtained by fraud, requiring a fresh action to establish fraud.

A. The Plaintiff's Statement Of Claim

[1] IJM Corporation Bhd ("IJM") filed a suit on 27 July 2001 at Butterworth Sessions Court under under Suit No: 52-621-2001 that was later transferred to Penang High Court and registered under Suit No: 22-2232009 ("1st Suit") to claim outstanding maintenance charges of an office unit ("Office Unit") sold to the Plaintiffs. In their defence the Plaintiffs alleged that IJM had failed to deliver vacant possession of the Office Unit and counter claimed for IJM to deliver vacant possession and to pay damages for late delivery. In its reply IJM alleged that vacant possession of the Office Unit was delivered through a letter dated 9 October 1996 ("Letter").

[2] During hearing on 31 March 2011 the Defendant who was the only witness for IJM testified that vacant possession was delivered to the Plaintiffs through the Letter. The Defendant admitted that the maker of the Letter by the name of Goh Chye Hin had resigned and cannot be traced.

[3] On 3 June 2011 the learned Judge decided to dismiss IJM's claim and allowed Plaintiffs' counter claim. IJM was ordered to deliver vacant possession of the Office Unit to the Plaintiff and pay damages of RM467,568.00. IJM then filed an appeal against the decision of the High Court at the Court of Appeal.

[4] In his Grounds of Judgment the learned Judge rejected the Letter that was marked as ID2 due to the failure of IJM to produce the maker of the Letter and to adduce any proof of service of the Letter on the Plaintiffs.

[5] Subsequently on 2 May 2013, the Plaintiffs conducted an official search of the Office Unit at the Pendaftar Hakmilik Tanah Pulau Pinang and discovered that the strata title of the Office Unit had been issued on 1 April 2002 and was still under IJM's name.

[6] IJM's appeal was heard on 14 May 2013, where it was again argued by IJM that vacant possession of the Office Unit was delivered to the Plaintiffs through the Letter as confirmed by the Defendant. Apparently the Court of Appeal allowed the appeal.

[7] In its 'Judgment of the Court' dated 11 October 2013 the Court of Appeal decided to accept the Defendant's testimony that vacant possession of the Office Unit was delivered to the Plaintiffs through the Letter.

[8] On 25 February 2014, the Plaintiffs managed to trace Goh Chye Hin at his office at No 14, Tingkat 1, Lebuh Penang, 10200 Penang. Goh Chye Hin confirmed that after resigning from IJM he became a contractor that handled IJM's housing development projects and had been dealing with the Defendant. Goh Chye Hin also confirmed that he prepared the Letter just to shift the burden of paying maintenance cost of the Office Unit from IJM to the Plaintiffs and not for the purpose of delivering vacant possession to them.

[9] Subsequently the Plaintiffs filed a suit against IJM at Kangar High Court (Suit No: 22NCVC-01-05-2014) that was later transferred to Penang High Court (Suit No: 22NCVC-13-02-2015) and finally transferred to Georgetown Sessions Court (Suit No: PA-B52NCVC-6-02-2016) for refusing to transfer the Office Unit to them ("2nd Suit). During trial, Dato Toh Chin Leong was called as IJM's only witness. He testified that the Letter was not meant to deliver vacant possession of the Office Unit to the Plaintiffs.

[10] The Plaintiffs alleged that the Defendant had committed fraud when he testified that Goh Chye Hin had resigned from IJM and cannot be found whereas he can be traced and had been dealing with the Defendant. The Defendant had also committed fraud based on the evidence given by both Goh Chye Hin and Dato Toh