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2023 MarsdenLR 542
HIGH COURT MALAYA KUALA LUMPUR
GLOBAL KIARA SDN BHD – Appellant
Versus
ANG YOKE SENG & ANOTHER CASES – Respondent
[Civil Suit No: WA-22NCVC-284-04-2019]
A Third Party Notice can be issued without court leave against a party already involved in a suit under O 16 r 8 of the Rules of Court 2012.
Headnote:This judgment concerns the objection raised by Leong Ah Lan against a Third Party Notice issued by Ang Yoke Seng. The Court examined the Rules of Court 2012, specifically O 16 r 8(1) and (2), which allows a defendant to issue a Third Party Notice without leave against parties already in the action when claiming indemnification. The Court found that Ang Yoke Seng could issue the notice and dismissed Leong Ah Lan's objections, concluding there was no res judicata or estoppel preventing the notice. The issues at hand involved the procedural law concerning Third Party Notices under the Rules of Court 2012 and the applicability of res judicata and estoppel regarding previously raised claims. The Court determined that the impugned Third Party Notice issued by Ang Yoke Seng did not require leave and addressed procedural discrepancies from earlier filings. The Court ruled that the objections raised by Leong Ah Lan were dismissed, affirming Ang Yoke Seng’s right to issue the Third Party Notice without prior leave of the Court.
Based on the provided legal document, the key points are as follows:
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A Third Party Notice can be issued without prior court leave against a party already involved in a suit under O 16 r 8 of the Rules of Court 2012, specifically when claiming indemnification or contribution (!) (!) .
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The issuance of a Third Party Notice against a party who is already a defendant in the same suit does not require court approval if the claim is for contribution or indemnity, and such notices can be served against co-defendants without seeking leave (!) (!) .
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The procedural distinction between issuing a Third Party Notice under O 16 r 8 and other provisions (such as O 16 rr 1 and 2) is significant. Notices under O 16 r 8 are aimed at parties already involved in the action and do not require leave, whereas notices under other rules may require court approval depending on the circumstances (!) (!) .
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The court emphasized that a Third Party Notice can only be issued against a person who is not already a party to the action. Once a party has been added to the suit, they cannot be served with a Third Party Notice under the same procedural rule (!) (!) .
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The doctrine of res judicata and estoppel may prevent a party from raising the same issues in subsequent proceedings if those issues have already been decided in earlier cases. However, in this context, the court clarified that procedural missteps (such as filing under the wrong rule) do not necessarily bind the party if the underlying right to issue the notice remains valid (!) (!) (!) .
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The court distinguished between claims for contribution or indemnity that are part of the main counterclaim and separate claims that are independent. Claims for contribution or indemnity are generally connected to the main action and cannot be brought as separate actions if the main claim is unresolved (!) (!) (!) .
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The issuance of a Third Party Notice under O 16 r 8 does not require leave if the claim fits within the scope of contribution or indemnity against a party already involved in the suit. Nonetheless, procedural errors or misapplications of the rules can lead to dismissals, but these do not necessarily negate the underlying right to issue such notices (!) (!) .
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The court reaffirmed that the purpose of Third Party Notices is to resolve all related issues in one proceeding and prevent multiplicity of actions, but procedural compliance is critical to their validity (!) (!) .
In summary, the document underscores that a Third Party Notice can be issued without court leave against parties already involved in the same suit when claiming contribution or indemnity, provided procedural rules are correctly followed. Filing under the wrong procedural rule may lead to dismissals, but does not inherently bar the underlying right to serve such notices if the procedural requirements are ultimately met.
Preliminary
[1] By way of Enclosure 128, Ang Yoke Seng, the defendant in the original action, issued a Third Party Notice without leave to Leong Ah Lan, the second defendant in the counterclaim. Prior to the issuance of this Third Party Notice, Leong Ah Lan was added to the counterclaim as a second defendant on Ang Yoke Seng's application. As a result of the Third Party Notice, Leong Ah Lan has also been named the second third party in this suit.
[2] On the application of Ang Yoke Seng, a Third Party Notice was also issued to Hilltop F&B Sdn Bhd which is now known as the first third party.
[3] Ang Yoke Seng's Third Party Notice in Enclosure 128 is now being objected to by Leong Ah Lan.
[4] Considering the various capacities of the parties involved in this suit and their particular involvement, they will be referred to by their individual names in these grounds of judgment
History of the proceedings
[5] Both parties' allegations involved intricate details. Consequently, I will not touch them in detail to address the issues arising from Enclosure 128. This will enable me to extract only the relevant facts needed for the present issues.
[6] According to the plaintiff, Global Kiara Sdn Bhd ("Global Kiara"), this action arises from a dispute between Ang Yoke Seng and Global Kiara regarding Ang Yoke Seng's outstanding loans to Global Kiara pursuant to various agreements entered into for the operation of a grocery store and food hall ("business venture") in Sky Avenue, Genting Highlands, Pahang.
[7] Ang Yoke Seng, through his company Indera Wirajaya Sdn Bhd, had earlier presented the concept for the business venture to the management of Sky Avenue, Genting Malaysia. Genting Malaysia agreed to this business concept and offered his company premises to hold the business.
[8] For the purpose of materialising the business concept, Ang Yoke Seng discussed it with Leong Ah Lan, who is also a director of Global Kiara. They had previously established a business venture in a Japanese restaurant at Kuala Lumpur International Airport.
[9] Global Kiara's perspective is that as a result of negotiations between Ang Yoke Seng and Leong Ah Lan, Global Kiara has joined forces with Ang Yoke Seng to pursue the said business venture through a company called Hilltop F&B Sdn Bhd which was originally known as Indera Wirajaya Sdn Bhd. The company will be owned by Global Kiara and Ang Yoke Seng to the tune of 40% - 60%.
[10] A total of three (3) agreements were entered into between the parties in order for the business venture to materialise:
(a) A loan agreement dated 1 October 2017 that governs the terms by which Global Kiara will advance the sum of RM3 million against guarantees from Ang Yoke Seng and Leong Ah Lan in the proportions of 60% and 40% ("the First Agreement");
(b) A loan agreement dated 10 January 2018 which stipulates that Global Kiara will advance Ang Yoke Seng RM1.2 million for him to acquire 60% of Hilltop ("the Second Agreement"); and
(c) A shareholder agreement dated 11 January 2018 regulating the relationship between Global Kiara and Ang Yoke Seng as shareholders of Hilltop ("the Shareholders Agreement").
[11] As a result of Ang Yoke Seng's alleged breach of the First Agreement, this action is being taken to recover all outstanding amounts under both loans.
[12] By contrast, Ang Yoke Seng alleges that Leong Ah Lan coerced, unduly influenced and misrepresented him into signing those agreements. While initially hesitant to sign the agreements, Ang Yoke Seng reluctantly signed them due to pressure from Hilltop's creditors and the fact that Global Kiara and Leong Ah Lan said they would not pay those creditors unless Ang Yoke Seng signed the agreements.
[13] Ang Yoke Seng was under the impression at that particular time that it would be Leong Ah Lan who would take part in the Sky Avenue business venture as originally agreed. It was only after receiving those agreements prepared by Global Kiara and Leong Ah Lan that it turned out
