The plaintiff must clearly plead fraud and provide evidence; failure to do so warrants dismissal under res judicata and principles of clean hands.

Introduction

[1] In this Action, the Plaintiff sought an injunction against the Defendants to prohibit them from enforcing the judgment obtained by them on 28 September 2017 ("the SC Judgment") in Sessions Court Johore Bahru Suit No JA-A53KJ-632-09/2016 ("the SC Suit") and for declarations that the SC judgment is irregular and cannot be the basis to commence any execution proceedings, damages for (i) abuse of process, (ii) malicious prosecution, (iii) unjust enrichment and (iv) for the tort of threat of execution against the Plaintiff without first obtaining a judgment against the Plaintiff.

[2] After a full trial held over 22 days, I had dismissed the Plaintiff's claim with costs.

[3] This judgment contains the full reasons for my decision.

Background

[4] The Plaintiff, an insurer listed on the main board of Bursa Malaysia had issued a policy to cover motor cycle No JQA 6107 owned by one Thanabalan M Rajamanickam ("Thanabalan") for the period 31 March 2014 to 31 March 2015.

[5] The 1st and 2nd Defendants as rider and owner respectively of motorcycle No PER 6664 had filed the SC Suit in respect of an alleged accident with Thanabalan's motorcycle on 3 September 2014 ("the accident"). The 1st Defendant suffered multiples injuries including being paralysed as a result of the accident. Thanabalan had lodged a police report on 16 September 2014 ("1st police report") that he collided into the 2nd Defendant's motorcycle.

[6] The Plaintiff appointed Adjusters to investigate the accident and to record a statement from Thanabalan as to how the accident occurred upon receipt of notice of commencement of proceedings. The Adjusters reported that Thanabalan informed the Adjusters that his motorcycle was not involved in the 3 September 2014 accident.

[7] 2 years after his 1st police report, on 14 November 2016, Thanabalan lodged a 2nd police report to recant the 1st police report, stating that he was not involved in the accident and that after lodging the 1st police report, he was paid a sum of RM600.00 by one male Indian to make the 1st police report. This 2nd police report was stated to be made on his own free will.

[8] The 1st Defendant also lodged 2 police reports on 10 September 2015 stating that he was riding motorcycle No PER 6664 which was involved in the 3 September 2014 accident with Thanabalan's motor cycle No JQA 6107.

[9] On 25 January 2017, the Plaintiff obtained against Thanabalan a declaratory order under Kuala Lumpur High Court Originating Summons No WA-24NCC-537-12/2016 to declare the policy void and unenforceable.

[10] Upon obtaining the declaratory order, the Plaintiff instructed its solicitors to discharge themselves from further acting for Thanabalan in the Sessions Court.

[11] The Defendants proceeded with their case and on 28 September 2017 obtained the SC Judgment in their favour for a sum of almost RM4,000,000.00, interest and costs. The learned Sessions Court Judge ("SCJ") adjudged that Thanabalan was 100% liable for the accident on 3 September 2014.

[12] By letter dated 28 August 2020 received by the Plaintiff on 2 September 2020, the Defendants' solicitors demanded from the Plaintiff payment of the judgment sum, interest and costs of over RM4,000,000.00 arising from the SC Judgment. The Plaintiff then applied to intervene and to set aside the SC Judgment in the Sessions Court and also filed the present action.

[13] Thanabalan made a 3rd Police Report on 7 October 2020. In this 3rd Police Report, he retracted the 2nd Police Report and claimed that he was misled by Mr Rahimy to make the 2nd Police Report because he did not have a valid driving licence when the accident happened.

Plaintiff's Case

[14] The Plaintiff's pleaded case in t