The declaratory order on an insurance policy's void status does not bar recovery actions if the plaintiff benefits from a final judgment in a separate case.

JUDGEMENT

Quay Chew Soon JC:

Introduction

[1] This is an appeal against the decision of the learned Sessions Court Judge ("SCJ") dated 17 June 2020. The SCJ had dismissed the Appellants' application vide encl 71 to strike out the Respondent's Writ and Statement of Claim dated 10 October 2017. Enclosure 71 does not state which provision of the Rules of 2012 it is made under.

[2] I dismissed the appeal. Here are the grounds of my decision. The parties shall be referred to as they were in the Court below. Where the Appellant is the defendant ("D") and the Respondent is the plaintiff ("P").

Background Facts

[3] On 29 August 2009, one Goh Soon Seng ("deceased") whilst driving his motorcar No PHX 8859 was involved in a collision ("Road Accident") with another motorcar No AAM 943 ("Said Motorcar"). The Said Motorcar was driven by one Gui Chong Siang ("Driver"). The policy of insurance in respect of the Said Motorcar ("Insurance Policy") was issued by D in the name of one Chin Fook Lim ("Insured"). The deceased suffered injuries from the Road Accident and passed away on 4 October 2009.

[4] P is the wife of the deceased. She filed an action at the Butterworth Sessions Court vide Suit No 53-862-2010 against the Driver and the Insured arising from the Road Accident ("Road Accident Suit"). When the Road Accident Suit was pending submission and decision, D applied for a declaratory order at the Kuala Lumpur High Court vide Originating Summons No 24NCvC-560-03/2013 ("KLHC OS"). On 3 April 2013, D obtained an order declaring that the Insurance Policy is void and unenforceable ("Declaratory Order").

[5] Meanwhile, P obtained judgment against the defendants in the Road Accident Suit on 29 May 2013 ("Road Accident Judgment"). The defendants in the Road Accident Suit were found to be 100% liable for the Road Accident, They were ordered to pay to P a sum of RM282,166.00 for loss of support and special damages and in addition, costs and interest. No appeal was lodged against the Road Accident Judgment.

[6] P filed a recovery action vide Suit No A52 NCC-69-09/2013 at the Butterworth Sessions Court to recover the judgment sum that was awarded under the Road Accident Judgment. But subsequently withdrew the said recovery action with liberty to file afresh.

[7] P then filed an application to intervene and set aside the Declaratory Order at the Kuala Lumpur High Court in the KLHC OS. The application was disallowed by the Kuala Lumpur High Court.

[8] P proceeded to file the instant suit at the Butterworth Sessions Court to recover the judgment sum that was awarded under the Road Accident Judgment. P had applied for summary judgment but the application was dismissed by the Butterworth Sessions Court. P then filed an appeal against the said decision to the Penang High Court vide Civil Appeal No PA-12ANCC-5-03/2018. The said appeal was dismissed by the Penang High Court on 19 November 2018. The Penang High Court directed that the instant suit be sent back to the Butterworth Sessions Court for trial.

[9] In turn, D applied to strike out the instant suit. The application was dismissed by the SCJ. Hence, the appeal before me against the decision of the SCJ.

Defendant's Submission

[10] D's appeal is premised on res judicata and issue estoppel. The memorandum of appeal states the following grounds:

(a) The SCJ erred in law and in fact in failing to be bound by the principle of stare decisis by refusing to be bound by the decisions of the Federal Court in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd, 1995 MarsdenLR 1135 and Kerajaan Malaysia v. Mat Shuhaimi bin Shafiei , [2018] 2 MLJ 133, and also by the decision of the Court of Appeal in Residence Fiotels and Resorts Sdn Bhd v. Seri Pacific Corp Sdn Bhd; [2016] 2 MLJ 640, and also the decision of the High Court in Ng Seng Hwa v. CL Floldings Bhd; [1994] 1 MLJ 343, which all held that when a matter between 2 parties has been adjudicated by a Court of competent jurisdiction, the same 2 parties are not permitted to l