Back
2011 MarsdenLR 4584
HIGH COURT, JOHOR BAHRU
HUSSEIN BIN ABDUL RAHMAN – Appellant
Versus
AMBANK (M) BERHAD & ORS – Respondent
[23Ncvc-127-2011]
A plaintiff is estopped from re-litigating claims against solicitors on grounds that arise from a previous action when no appeal was made against the striking out of that action.
Headnote:(A) Rules of Court 1980 - Order 18 Rules 19(b), (c) and (d) - The doctrine of res judicata - Plaintiff estopped from suing the 2nd to 4th defendants who were solicitors for the 1st defendant in a prior action which was struck out due to plaintiff's negligence in appealing the decision. The plaintiff's new action was deemed based on the same cause of action without proper grounds since no appeal was made. (Paras 1-9)
(B) Malicious Prosecution - Plaintiff claims against solicitors for wrongful bankruptcy proceedings; previously known nexus unexploited by reasonable diligence disallows re-litigation of same issues. (Paras 5, 6, 7)
(C) Abuse of Process - Court affirmed that the plaintiff's writ is scandalous, frivolous, and vexatious due to the failure to address earlier claims, justifying dismissal with costs. (Paras 8, 9)
Facts of the case:
Defendants (2nd to 4th) acted as solicitors for the 1st defendant in the 2007 Action, which was dismissed. Plaintiffs failed to challenge this dismissal, instead pursued new claims against the defendants based on the same transaction.
Findings of Court:
Plaintiff's claims were ruled an abuse of court process, leading to dismissal of the case with costs awarded to the 2nd to 4th defendants.
Issues: Whether the doctrine of res judicata applies to prevent the plaintiff from suing the same defendants on the same grounds given previous actions.
Ratio Decidendi: The court held that by not appealing the prior case, the plaintiff recognized the correctness of the decision to strike it out, thus barring the present action due to the principle of res judicata.
Result: Application allowed, with costs awarded.
| Table of Content |
|---|
| 1. the plaintiff's claim relates to prior legal actions. (Para 1 , 1) |
| 2. plaintiff's arguments against defendants' application. (Para 2 , 3) |
| 3. court's reasoning on issues barred from relitigation. (Para 4) |
| 4. nexus between defendants and the bankruptcy claim. (Para 5) |
1. The 2nd to 4th defendants' main contention is that the plaintiff is estopped from suing them on the following grounds:
(i) the 2nd to 4th defendants were solicitors acting for the 1st defendant in JBHC Suit No. 22-820-2007 ('the 2007 Action') which was struck out on 7.2.2011. The 2nd to 4th defendants were not sued in the 2007 Action.
(ii) the plaintiff did not appeal or apply to re-instate the 2007 Action.
(iii) instead the plaintiff filed this action ('the 2011 Action') against the 1st defendant on the same cause of action. The 2nd to 4l defendants were added as co-defendants.
(iv) the plaintiffs should not have filed this action as the doctrine of res judicata applies even though the parties are different
2. In reply, the plaintiffs argument is that:
(i) the 2nd to 4th defendants are sued on the basis of a letter dated 9.6.2003.
(ii) the cause of action is malicious prosecution despite receiving instructions from the 1st defendant to the contrary.
Decision
3. The plaintiff's failure to appeal against the striking out of the 2007 Action or apply to reinstate the 2007 Action is an omission on the part of the plaintiff which constitutes an admission that the striking out was correct.
4. Notwithstanding that the 2007 Action was not heard on the merits, the plaintiff was precluded from raising the same issues which had been available at the 2007 Action ( Multiview Enterprise Sdn Bhd v. Orientus Industry Sdn Bhd , ).
5. The 2011 Action is in essence premised upon the same transaction, ie, that the plaintiff was wrongly made a bankrupt by the 1st defendant and 2nd to 4th defendants as the solicitors having the conduct of the bankruptcy proceedings.
