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2021 MarsdenLR 2083
HIGH COURT MALAYA JOHOR BAHRU
TENAGA NASIONAL BERHAD – Appellant
Versus
QL ENDAU MARINE PRODUCTS SDN BHD (ENCL 41) – Respondent
[Civil Suit No: JA-22NCvC-25-02/2020]
Claims arising from the same factual matrix must be litigated together, barring separate suits due to res judicata, maintaining judicial economy and finality in decisions.
Headnote:(A) Courts of Judicature Act 1964 – Section 25(2) – Electricity Supply Act 1990 – Sections 38(1), (3), (4), (5) – Application to strike out suit found to violate res judicata and abuse of process – Defendant contended that Plaintiffs should have raised their revenue loss claim in earlier proceedings for operational efficiency – Court emphasized 'finality in litigation' and the importance of addressing all related claims in one action. (Paras 56 and 54)
Facts of the case: Plaintiff TNB alleged tampering of meter at Defendant QL Endau's premise leading to a claim for unpaid revenue after unlawful disconnection. Previous suit confirmed disconnection's unlawfulness but did not address revenue loss.
Findings of Court: The Plaintiff's failure to combine claims in the first suit leads to this application being ruled as an abuse of court process.
Issues: The case focuses on the application of res judicata and the implications of claiming loss of revenue in separate litigation.
Ratio Decidendi: The court held that litigation over the same subject matter should be disposed of in one go to avoid multiplicity of proceedings.
Result: Application to strike out the suit is granted with costs.
(Enclosure 41)
The Brief
[1] This is an application filed by the Defendant through a Notice of Application dated 17 December 2020 (Encl 41) under O 14A; O 18, r 19(d); and/or O 92, r 4 of the Rules of 2012 and/or s 25 (2) of the Courts of Judicature Act 1964 : for the Plaintiff's Writ of Summons and the Statement of Claim in the instant suit to be struck out.
[2] The Defendant's primary grounds for the application are:
(a) The instant suit violates the doctrine of res judicata;
And/alternatively
(b) The commencement of this suit is an abuse of the Court's process.
The Matrix
[3] For ease of reference, the parties to these proceedings shall be referred to as follows in this judgment:
- The Plaintiff as "TNB"; and
- The Defendant as "QL Endau".
[4] On 16 July 2019, TNB conducted a meter inspection on QL Endau's premise, known as No 11, Jalan Merlimau, 86900 Endau, Johor ("the said Premise") and alleged that the meter installed at the said Premise had been tampered with.
[5] After the said inspection, TNB issued a 1st Notice of Disconnection dated 16 July 2019 to disconnect electricity on 14 August 2019, but the said disconnection was not carried out on that date.
[6] Thereafter, TNB proceeded to issue a 2nd Notice of Disconnection dated 28 August 2019, scheduling disconnection on 5 September 2019.
[7] On 5 September 2019, the electricity supply was indeed disconnected for the Energy Commission ("EC") to collect the impugned CT for investigation whilst TNB replaced the impugned meter with a new meter.
[8 However after the replacement, TNB refused to reconnect the electricity supply on grounds that there was meter tampering and insisted that electricity supply would only be reconnected after the alleged "undercharged sum" of RM5,838,171.30 is paid by QL Endau.
[9] QL Endau then filed a suit against TNB at the Johor Bahru High Court, vide case no JA-22NCvC-142-09/2019 ("the 1st suit") to reconnect the electricity and make a claim for exemplary damages for the unlawful disconnection of the electricity.
[10] The Johor Bahru High Court heard the injunction application and granted an ex-parte order on 10 September 2019 wherein electricity supply was reconnected on 10 September 2019. The Court subsequently re-affirmed that ex- parte order after inter-parte hearing on 23 September 2019
[11] The 1st suit proceeded with TNB filing its Defence on 3 October 2019, alleging that the disconnection on 5 September 2019 was lawful and was done as a result of meter tampering.
[12] In the 1st suit, TNB did not file any counterclaim for any loss of revenue due to the alleged meter tampering.
[13] After the close of pleading, the Johor Bahru High Court directed both parties to file all pre-trial cause papers including Bundle of Pleadings, Common Bundle of Documents, Agreed Facts, Issues to be Tried, Summary of Case and List of Witnesses. Trial dates were also fixed by the Court during the case management on 8 December 2019.
[14] In or around February 2020 (5 months after commencement of the 1st suit), TNB filed a separate suit also at Johor Bahru High Court vide case no JA-22NCvC-25-02/2020 ("the instant suit") against QL Endau, alleging meter tampering on the said Premise during the meter inspection on 16 July 2018 and claimed a sum of RM5,741,931.40 as loss of revenue.
[15] A few days before commencement of trial in the 1st suit, TNB filed an application dated 4 March 2020 (Encl 5) before this Court to consolidate the instant suit with the 1st suit ("the Consolidation Application") on the grounds that the 2 cases arose from the same factual matrix, namely the meter inspection conducted on 16 July 2019; and that both cases were premised on alleged meter taring four on the meter installed at the said Premise.
[16] On the first day of trial on 9 March 2020, TNB's counsels requested that trial in the 1st suit be adjourned pending the disposal of the Consolidation Application in this Court.
[17] The Johor Bahru High Court in the 1st suit
