Wan Suleiman SCJ:

The appellants had by various hire purchase agreements hired out to the first respondent various motor vehicles, as set out in their statement of claim, the 1st respondent being a limited company and the 2nd respondent the guarantor of the 1st respondent.

The appellants have previously filed a suit, K.L. High Court Civil Suit No. C1129 of 1981 (the first suit) against the 1st respondent alone relating to the same subject save that the first suit was in respect of 8 out of the 9 vehicles.

In the 1st action the appellants unsuccessfully attempted to obtain summary judgment under O. 14, and the respondents were given unconditional leave to defend. The appellants discontinued their action and were granted liberty to file afresh.

There was no appeal from this decision which was made by the Senior Assistant Registrar. The appellants then filed the present suit, i.e. Civil Suit No. C83 of 1984 (the second suit), and again sought to obtain summary judgment under O. 14.

Counsel for the respondents submitted in the Court below that since the issues between the parties had been finally decided on the merits in the hearing before the Senior Assistant Registrar in the 1st suit where the appellants' application for summary judgment had been dismissed, and where no appeal had been lodged, that decision was to be regarded as a final one, and the doctrine of "issue estoppel" would apply against them.

The learned Judge in the Court below agreed with Counsel for the respondents and allowed their appeal against the decision of the Senior Assistant Registrar of 6 February 1985 wherein the latter had allowed the appellants to enter final judgment under O. 14 in the second Civil Suit.

We agree with the learned Judge that "issue estoppel" can arise even where a plea of res judicata cannot be established because the causes of action are not the same.

Halsbury's Laws of England - 4th Edn., Vol. 16 para. 1530 succinctly sets out the law, which is cited here-under:

A party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Even if the objects of first and second actions are different, the finding on a matter which came directly (not collaterally or incidentally) in issue in the first action, provided it is embodied in a judicial decision that is final, is conclusive in a second action between the same parties and their privies. This principle applies whether the point involved in the earlier decision, and as to which the parties are estopped, is one of fact or one of law, or one of mixed fact and law. The conditions for the application of the doctrine have been stated as being that (1) the same question was decided in both proceedings; (2) the judicial decision said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

Where one party has raised an issue which his opponent alleges is barred by issue estoppel the opponent can either plead the estoppel and leave the matter to be dealt with at the trial, or he can attempt to have the offending plea struck out.

It adopts the very words of Lord Guest's speech in Carl-Zeiss-Stiftung v. Rainer And Keeler Ltd. & Ors. (No. 2) [1966] 2 All ER 536 at 565, referred to by the learned Judge in his judgment.

We need only deal with the only other point taken up on behalf of the appellants by Mr. Chandran. It is clear to us that learned Counsel has misread the judgment because his contention here is that the learned Judge had erred in law in holding that even if first defendant was given unconditional leave to defend (in K.L. High Court C.S. No. C1129 of 1981), the granting of such unconditional leave to defend to the first respondent/first defendant operates to estop the appellant from proceeding with an application for summary