Low Hop Bing J:

Appeal

[1] This is an appeal by the appellant-defendant ("the defendant") against the decision of the learned sessions court judge ("the present trial judge") who had on 1 October 2003 allowed the plaintiff's preliminary question raised under O. 28 r. 9 of the Subordinate Courts Rules 1980 (O. 33 r. 2 of the Rules of the High Court 1980). The question was formulated by the plaintiff's solicitors as follows:

Whether the Court has decided on the issues and merits of the case on the application for summary judgment which are essentially the same as the counterclaim and hence the issues raised in the counterclaim are res judicata? ("the Question")

[2] The present trial judge answered the question in the affirmative and dismissed with costs the defendant's counterclaim.

[3] A reference to an order and a rule in this judgment shall be a reference to that order and rule in the Subordinate Courts Rules 1980 unless otherwise stated.

Factual Background

[4] The plaintiff's claim against the defendant is for the refund of the advance of RM50,000 together with interest at 8% p.a. from 1 March 1997 to the date of realisation, and costs, vide an agreement dated 13 Novembe