The court affirmed the principles of res judicata and limitation, ruling that a derivative action is unsustainable if the matter has been previously adjudicated or is filed after the expiration of the statutory limitation period.

(Enclosure 10, Summons in Chambers to Strike Out the Plaintiffs

Writ of Summons and Statement of Claim Under Order 18 Rule 19(1) (b) and (d).

The Plaintiff has instituted this claim as a derivative action for and on behalf of the 2nd Defendant. The 1st Defendant now applies my Summons in Chambers to strike out the Plaintiffs derivative action with costs. The 1st Defendant applies to strike out the claim on the basis that it is frivolous and vexatious and/or is an abuse of the courts process. To principal grounds are raised - (1) the Plaintiff action is frivolous and vexatious since action is statute barred, and (2) the Plaintiffs claim is an abuse of court process since the subject matter is res judicata.

On the Plaintiffs pleadings, both the Plaintiff and the 1st Defendant were and are at all material time shareholders and directors of the 2nd Defendant. It appears that they were once husband-and-wife. The claim relates to an alleged breach of trust in relation to the operation of the 2nd Defendants Account No. 11298001172 in Phileo Allied Bank (Malaysia) Berhad, and allegedly funds from this account had been transferred into the personal account of the 1st Defendant No. 11298001305 with the same Bank. As alleged in paragraph 6 of the Statement of Claim, the 1st Defendant has misused the monies belonging to the 2nd Defendant for her own use without the knowledge and consent of the Plaintiff as director and equal shareholder of the 2nd Defendant. The allegation is a misappropriation of RM3,752,804.17 of the companys monies, and allegedly, despite notices being sent to the 1st Defendant, the 1st Defendant has failed and neglected to return the monies to the company. On this basis therefore, the Defendant has allegedly committed breach of trust and contravened rules under the Companies Act 1965 . The reliefs prayed for are equally direct, namely for an order that the 1st Defendant return a sum of RM 3,752,804.17 to the bank account of the 2nd Defendant, Account No. 11298001172 with immediate effect, and interest thereon at the rate of 8% per year from the date of filing of the Writ of Summons until full settlement, costs and such other relief as this Court thinks appropriate.

The Summons in Chambers to strike out the Writ of Summons and Statement of Claim is supported by the affidavit of the 1st Defendant herself. The 1st Defendant says the subject matter is res judicata, and refers to an earlier High Court Kuala Lumpur decision in 3-22-485-2004, where the 1st Defendant was the Plaintiff then, whilst the present Plaintiff was the 1st Defendant. The 1st Defendant as Plaintiff in the earlier action, succeeded in her claim against the present Plaintiff and under the judgment obtained dated 8.7.2010, the present Plaintiff was ordered to pay to the company the sums of RM280,164.54, RM178,591.95 and RM304,539.02, being sums of money diverted by the present Plaintiff into his own personal accounts in three Banks (OCBC Bank (M) Berhad, Hong Leong Bank Berhad and Maybank Berhad). By the same judgment, the present Plaintiff was ordered to return to the company certain specified stocks, or their value within 14 days from the date of the judgment. This judgment appears as Exhibit "WML-1". The High Court Judge in that earlier action also dismissed the present Plaintiffs counterclaim against the present 1st Defendant. In his Defence and Counterclaim in the earlier action, the present Plaintiff expressly pleaded misappropriation of profits of the 2nd Defendant company by the present 1st Defendant. Paragraph 15 of the Defence and Counterclaim refers. This is exhibited as "CPF-2" to the Affidavit in Reply of the Plaintiff. Against this setting, the 1st Defendant now argues the subject matter of the present suit, n