The doctrine of res judicata does not bar fresh actions to impeach a judgment based on intrinsic fraud, provided it meets substantial legal thresholds.

The Appeal

[1] The present appeal before us is against the decision of the Court of Appeal dated 18 January 2012 affirming the decision of the Kuantan High Court dated 2 September 2010 in dismissing the appellants application to strike out paras 22 to 29 of the respondents statement of claim dated 22 December 2008.

[2] On 20 March 2014, leave to appeal to the Federal Court was granted on the following two questions:

(i) Whether the test in Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Bhd, 1993 MarsdenLR 99 applies to an application to strike out an action brought to impeach a judgment based on intrinsic fraud or whether a different threshold should be applied; and

(ii) Whether intrinsic fraud including perjured evidence is a ground in which a judgment of a Court of competent jurisdiction may be impeached by virtue of s 44 of the Evidence Act 1950 .

Factual Background

[3] Since we are dealing here with the question of striking-out pleadings under O 18 r 19 of the Rules of the High 1980 (now the Rules of 2012 - the ROC), we do not propose to go into the facts and documents in any more detail than is necessary. In this regard, we only need to trace the basic factual background of the matter that lead to the filing of the striking out application by the appellant.

[4] The tussle between the parties started when the appellant filed an action against both the respondents on 9 January 2002 at the Kuantan High Court vide Civil Suit No: MT (1)21-9-2002 (2002 Suit). The said claim relates to a forest concession of 10,000 acres in Kampung Nenasi, Mukim Bebar, Daerah Pekan, Negeri Pahang awarded to United Malay National Organisation (UMNO) Pahang. The appellant was granted approval by the 2nd respondent to extract timber under the said concession. The appellant claimed that out of the 10,000 acres granted, they only managed to extract timber from an area measuring 7000 acres, because the 2nd respondent had refused to permit the appellant to do the same from the balance area of 3000 acres which the appellant claimed to include a portion of virgin forest in which the density of the trees was more intense and hence much more profitable. Instead, the appellant claimed that the 2nd respondent failed or neglected to prevent the extraction of timber by third parties trespassing into the said concession area. As a result of the 2nd respondents breaches, the appellant claimed to have suffered losses amounted to a sum of RM36,339,030.00.

[5] During trial of the 2002 suit the appellant tendered as evidence a plan (referred to as "the Blue Plan") of the said area, which the appellants witness claimed to have been duly approved by the Pahang State Exco on 5 April 2000. The respondents on the other hand claimed that, based on the records of the State Forestry Department, no approval was granted in respect of the area delineated in the said "Blue Plan". The respondents also claimed that the State Forestry Department had only approved the concession area as set out in "the Yellow Plan", which was the one approved by the Pahang State Exco on 7 January 1998. Subsequently, according to the respondents, the same concession area was resurveyed, and remapped into an area known as "the Red Plan".

[6] Unfortunately, the appellant had opted not to call the maker or the licensed surveyor who approved and signed on the "Blue Plan". Thus the respondents were unable to effectively challenge the validity of the said plan in Court.

[7] After 10 days of trial of the 2002 suit, on 25 May 2007 the learned trial judge ruled in favour of the appellant and entered judgment against the respondents whereby the respondents were ordered to pay the appellant a