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2023 MarsdenLR 1735
HIGH COURT MALAYA GEORGETOWN
MARVESCO SDN BHD – Appellant
Versus
APEX COMMUNICATIONS SDN BHD – Respondent
[Civil Suit No: PA-22NCVC-72-04/2023]
The doctrine of res judicata bars re-litigation of issues previously adjudicated, affirming that claims arising from the same subject matter cannot be pursued if already decided by a competent court.
Headnote:(A) Construction Industry Payment and Adjudication Act 2012 - Section 13 - Dispute regarding unpaid invoices for Variation Orders and Extension of Time - High Court declared that invoices are not payable until review and verification process is concluded - Adjudication decision not binding under Section 13 - Marvesco's subsequent claim struck out on grounds of res judicata and duplicity as issues were previously adjudicated in Suit No 1. (Paras 3, 40, 48)
(B) Res Judicata - The principle prevents re-litigation of issues already decided in a competent court - Marvesco's claim was found to be an abuse of process. (Paras 39, 42)
Facts of the case:
The Plaintiff, Marvesco, claimed unpaid invoices for Variation Orders and Extension of Time from Defendant Apex, following a previous adjudication and court decision that found these invoices not payable until approved by the employer, Prasarana.
Findings of Court:
The court found that the issues raised by Marvesco were already determined in Suit No 1 and allowed Apex's application to strike out the claim.
Issues: Whether Marvesco could relitigate issues already adjudicated in Suit No 1, specifically regarding the payment of invoices.
Ratio Decidendi: The court held that the doctrine of res judicata applies, preventing Marvesco from relitigating the same issues decided in Suit No 1.
Result: The suit was struck out.
| Table of Content |
|---|
| 1. dispute over unpaid invoices between parties. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. background facts of the contractual relationship. (Para 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. details of antecedent legal proceedings. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. court's analysis of the relitigation and issues determined. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 5. principles of duplicity and res judicata. (Para 38 , 39 , 40 , 41 , 42) |
| 6. marvesco's assertions against the application. (Para 44 , 45 , 46 , 47) |
Introduction
[1] The Plaintiff (hereinafter referred to as "Marvesco") was engaged by the Defendant (hereinafter referred to as "Apex") as a subcontractor for a project by the employer (hereinafter referred to as "Prasarana"). The project has since been completed. A dispute arose leading to adjudication proceedings and an adjudication award which subsequently was the subject matter of several other proceedings in the Penang High Court which I will elaborate on later in this judgment.
[2] The crux of the dispute appears to be what Marvesco contends are unpaid invoices for Variation Orders (hereinafter referred to as "VO's") amounting to RM2,658,287.25 and invoices for Extension of Time (hereinafter referred to as "EOT's") in the amount of RM1,015.196.60.
[3] Pursuant to full trial in Suit No PA-22C-1-01/2022 (hereinafter referred to as "Suit No 1"), the High Court made the following declaration on 16 December 2022 as follows:
(a) A declaration that the Defendant's (Marvesco) VO and EOT invoices as set out in para 9 herein or any payment in respect thereof are not due from or payable by Plaintiff (Apex) until the process of review and verification is concluded which is pending.
(b) pursuant to (a) above, a declaration that the Adjudication decision dated 10 January 2022 is not binding and/or enforceable against the Plaintiff (Apex) under s 13 of the CIPAA.
[4] Marvesco has appealed against the said decision in Suit No 1 and such appeal is fixed for hearing in the Court of Appeal on 14 February 2024.
[5] Notwithstanding, Marvesco filed these fresh proceedings in April 2023 seeking the relief that Apex pay them the amounts under the VO's and EOT invoices.
[6] Apex then filed encl 6 pursuant to O 18 r 19(1)(b) and/or (d) of the Rules of Court 2012 to strike out this claim. The crux of such application was that the matters pleaded in this case are res judicata and/or that Marvesco is estopped from raising these issues again in light of the decision in Suit No 1.
The Background Facts
[7] The background facts and history of proceedings between the parties are largely undisputed and are as follows:
[8] Prasarana Malaysia Berhad (hereinafter referred to as "Prasarana" / "Employer"), a wholly-owned Federal Government company, as the owner of a building project known as "Design, Manufacture, Delivery, Install, Integrate, Test, Commission and Warranty of Bus Integrated System for Rapid Bus - Rapid Penang" (hereinafter referred to as "the project") had appointed Apex and LG CNS Malaysia Sdn Bhd (hereinafter referred to as "LG CNS") to undertake, complete and handover the entire works under Contract No PRASARANA/GCS/CTT/2.0574/2015 on 28 March 2016 (hereinafter referred to as "the principal contract").
[9] Apex had engaged Marvesco as a subcontractor to carry out part of Apex's scope of works under the principal contract vide a Letter of Award dated 27 February 2017 under the title of "Turnkey Project for Renovation Civil Works including Fire Suppression System, GenSets, Air-Conditioning units and In-door / out-door data cabling works with accessories and necessary peripherals (BCC, DC, DRC, Server Rooms, Depots, Terminals and Hubs)" for a contract sum of RM1,614,380.00 (hereinafter referred to as "LOA"). A further sum of RM1,350,000.00 was claimable subject to the approval of the Prasarana. It is not in dispute that both the contractual sum and the additional sum have been fully disbursed to Marvesco under the LOA
