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2022 MarsdenLR 880
HIGH COURT MALAYA KUALA LUMPUR
YAN MOHD NOORDIN – Appellant
Versus
KAMAL BAHAREIN NORDIN & ORS – Respondent
[Originating Summons No: WA-24NCvC-30-01/2022]
Claims alleging fraud must be brought by writ, not as Ex-Parte OS, and repeated claims can be barred under res judicata principles.
Headnote:(A) Courts of Judicature Act 1964, Schedule Art 17 – Vexatious Litigants – Plaintiff filed an Ex-Parte OS alleging fraud without naming defendants – Previous similar applications dismissed by different judges – Court orders Plaintiff to add relevant parties and dismisses her OS, declaring her a vexatious litigant to prevent further abuse of process. (Paras 11, 45, 46)
(B)
Allegations of Fraud – Claims involving fraud must be commenced by writ, not OS, as per established legal principles. (Paras 26, 27)
(C)
Res Judicata – The same issues previously adjudicated should not be retaken in a new action, thus the new OS qualifies as an abuse of process. (Paras 28, 30, 31)
Facts of the case:
Plaintiff sought to set aside a court order from 2013, alleging fraud during prior proceedings. (Para 4, 13, 14)
Findings of Court:
The Plaintiff is declared a vexatious litigant; the OS dismissed with costs. (Para 45)
Issues
: Whether the Plaintiff’s claims of fraud could be properly brought by OS and if they are res judicata. (Paras 26, 28)
Ratio Decidendi:
Fraud allegations must be presented via writ; res judicata applies to prevent repetitive litigation. (Paras 27, 30)
Result:
OS dismissed, Plaintiff declared vexatious litigant, costs awarded. (Paras 45, 46)
JUDGMENT
Introduction
[1] This is a strange case.
[2] It is even stranger that an appeal has been filed by the Plaintiff after I dismissed her OS and granted an order that the Plaintiff is a vexatious litigant.
[3] In a nutshell, the Plaintiff had filed an Ex-Parte OS dated 4 January 2022 before me alleging fraud by various parties including a law firm Tetuan Akberdin & Co She asked me to give her declaratory orders which would affect them without naming them as defendants to her Ex-Parte OS.
[4] In essence, the Plaintiff wants to set aside a Court order dated 19 December 2013. The Court order is therefore granted more than 8 years ago. I heard counsel for the Plaintiff on 1 April 2022.
[5] Thinking that the Plaintiff's solicitors had momentarily forgotten two elementary legal propositions - that an action based on fraud should begin by writ and, a fortiori, not by Ex-Parte OS; and all parties affected by any Court order should be made defendants - due to the urgency to prevent fraud, I did not strike out the Ex-Parte OS when I heard counsel. Instead, I ordered the Ex-Parte OS to be converted to Inter-Parte.
[6] I also ordered the Plaintiff to add as defendants six [6] parties, including the firm of solicitors Tetuan Akberdin & Co, that would be affected by the orders sought by her. I also directed the Inter-Parte OS dated 27 April 2022 to be served on the six [6] parties.
[7] At the resumed hearing on 14 September 2022, these defendants, who are allegedly fraudsters, appeared represented by solicitors.
[8] To the Court's surprise, the 1st to 4th and 6th Defendants, informed me that the same Plaintiff had filed for the same reliefs in 2020 before Dr John Lee J in an Ex-Parte Notice of Application dated 18 September 2020 in OS No WA-24-NCVC-1746-10/2013 [OS 1746].
[9] A comparison of the Ex-Parte Notice of Application dated 18 September 2020 [see affidavit of the 1st Defendant Kamal Baharein Bin Nordin dated 7 June 2022 at para 4 and Exh KB-1] and the Ex-Parte OS dated 4 January 2022 would show the Plaintiff had filed for the same reliefs.
[10] Dr John Lee J had dismissed the Plaintiff's application. [see affidavit of the 1st Defendant Kamal Baharein Bin Nordin dated 7 June 2022 at para 4 and Exh KB-1, the 2nd Defendant firm of solicitor's affidavit via Marzelah Binti Zakaria dated 7 June 2022 at paras 6 to 9 and written submissions of the 2nd Defendant dated 11 August 2022 at paras 6 to 12].
[11] I dismissed the Inter-Parte OS dated 27 April 2022 on 14 September 2022 with costs. After considering the request by counsel for the 2nd Respondent and hearing submissions, I also made an order that the Plaintiff is a vexatious litigant pursuant to the additional powers granted to the High Court under s 25(2) read with art 17 Vexatious litigants of the Schedule to the Courts of Judicature Act 1964.
[12] The Plaintiff has now on 7 October 2022 lodged an appeal to the Court of Appeal. These are my Grounds of Judgment.
Background Facts
[13] On 4 January 2022 the Plaintiff filed an Ex-Parte OS before me, in essence, to set aside a Court Order dated 19 December 2013 which was granted more than 8 years ago. No defendants were named in her Ex-Parte OS.
[14] In the Ex-Parte OS, the Plaintiff prayed for the following orders:
1) Satu deklarasi bahawa Saman Pemula (Ex-Parte) bertarikh 31 Oktober 2013 dan Afidavit bertarikh 30 Oktober 2013 adalah tidak sah dan/atau terbatal dan/atau ditarik balik;
2) Satu deklarasi bahawa Perintah bertarikh 19 Disember 2013 adalah tidak sah dan/atau terbatal;
3) Kos permohonan ini ditanggung oleh Harta Pusaka Allahyarham Haji Nordin Bin Ayub @ Mat Nordin Bin Yeop, si mati; dan
4) Lain-lain relif yang difikirkan suai manfaat dan adil oleh Mahkamah Yang Mulia ini.
[15] The grounds relied on were stated in the Plaintiff's Ex-Parte OS as follows:
a. Terdapat pihak lain yang menyamar dan memalsukan tandatangan Plaintif Kedua di dalam Afidavit bertarikh 30 Oktober 2013 yang diikrarkan dihadapan Pesuruhjaya Sumpah No B233 E
