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2011 MarsdenLR 4685
HIGH COURT, KUALA LUMPUR
METROPLEX HOLDINGS SDN BHD – Appellant
Versus
COMMERCE INTERNATIONAL MERCHANT BANKERS BERHAD – Respondent
[Civil Suit No: S-22-329-2009]
The court ruled that claims barred by res judicata and limitation cannot be relitigated, affirming the validity of charges registered under the National Land Code.
Headnote:(A) National Land Code - Section 340(2) - High Court Rules, 1980 - Order striking out plaintiff's claim - Plaintiff sought to declare a charge invalid and set aside prior orders; however, claims barred by res judicata and limitation - Plaintiff's earlier claims were adjudicated, and current claims were deemed an abuse of process, frivolous, and vexatious. (Paras 1-59)
(B) Legal Principles - Res Judicata - Principles prohibiting a re-litigation of claims that have been previously determined by a competent court - Limitation of action - Claims filed well beyond the statutory limitation period deemed time-barred. (Paras 32-46)
(C) Findings of Court - Court found no grounds to contest the validity of the charge post-auction; plaintiff's attempts to relitigate were unmeritorious and resulted in wasteful litigation. (Paras 56-59)
(D)
Issues: Main legal issues included whether the plaintiff’s claim was time-barred and whether the matter was res judicata. (Paras 32, 43) (E)
Ratio Decidendi: The court held that the charge was valid and indefeasible according to the National Land Code, dismissing all challenges to its enforceability due to prior adjudications. (Paras 49, 56) (F)
Result: Application to strike out the plaintiff's suit was allowed with costs awarded against the plaintiff. (Para 58)
| Table of Content |
|---|
| 1. background facts regarding land charge and agreements (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 2. details of breach of agreements and timeframes (Para 15 , 16 , 17 , 18) |
| 3. court actions related to the sale of land (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 4. similarities in previous and current suits (Para 27) |
| 5. arguments around res judicata and claim limitations (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38) |
| 6. court's findings regarding limitations and acknowledgment of debt (Para 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48) |
| 7. preliminary objections and their impact on proceedings (Para 49 , 50 , 51 , 52) |
| 8. validity issues around foreign guarantors and charge (Para 54 , 55) |
| 9. conclusory remarks on the sustainability of the plaintiff's case (Para 56) |
The Plaintiff did not file any affidavit in reply.
Background Facts:
The reliefs which are being prayed for by the Plaintiff in the present suit are as follows:
i) A declaration that the Charge is not indefeasible within the meaning of section 340 (2) of the National Land Code ;
ii) A declaration that the Charge is null and void;
iii) A declaration that the Charge, the instrument and the Memorial are invalid;
iv) An Order that the Charge, the Instrument and the Memorial be set aside;
v) An Order that the Order for Sale dated 16.7.2007, the auction and the other related order in respect of the land made in the OS Proceedings ( Suit S-24-2394-2005) be set aside;
vi) An order that the Registrar of Titles cancel the entries from the register in respect of the Charge, Instrument and memorial;
vii) Costs.
The facts as can be discerned from the affidavit in support in Enclosure 7 and Affidavit in Enclosure 6, are as follows:
1. The Plaintiff, (hereinafter referred to as "Metroplex Holdings") is the registered owner of land held under Geran 10012, Lot No 38, Seksyen 51, Bandar Kuala Lumpur in the State of Wilayah Persekutuan (hereinafter referred to as "the lands").
2. By a Memorandum of Charge dated 16.8.1993 (The Charge) Metroplex Holdings charged the lands to Bank Bumiputera Malaysia Berhad (BBMB) in its capacity as the Security Agent for the "guarantors" (as defined in the Annexure to the Charge), as security for a guarantee facility granted by the guarantors to Metroplex Berhad, up to a maximum aggregate principle amount of RM 186 000 000.00 (guarantee facility) under a Guarantee Facility Agreement dated 16.8.1993, with interest thereon at the rates provided for under the Charge and Guarantee Facility Agreement and upon the terms and conditions stipulated under the Charge.
Metroplex Holdings is a wholly owned subsidiary of Metroplex Berhad. A copy of the Guarantee Facility Agreement is in exhibit CDM-3 of Enclosure 6.
3. Pursuant to Clause 18 of the Guarantee Facility Agreement, the relationship between BBMB as the security agent, and the Guarantors, is one of agent and principal.
4. Further, BBMB as Security Agent shall hold and stand possessed of the benefit of the security documents and of all amount received by the Security Agent under the Guarantee Facility Agreement, or under the Security Documents, upon trust for the Guarantors.
5. Pursuant to Clause 37 of the Annexure to the Charge (exhibit CDM-2 of Enclosure 6), Metroplex Holdings covenants and agrees that all the covenants stipulations, conditions and undertakings and agreements contained in the Guarantee Facility Agreement shall be read as forming part of the Charge.
6. The Charge over the lands was registered on 3.11.1993. Under the Charge, Metroplex Holdings is, inter alia , required to repay upon demand, the amount of indebtedness (as defined in the Annexure to the Charge) and all other amounts payable by Metroplex Holdings and/or Metroplex Berhad to BBMB for the account of the Guarantors pursuant to the terms of the Charge.
7. In order to fulfill its payment obligations under or in connection wit
