The doctrine of res judicata does not bar an application under O 18 r 19 where an O 11 application is dismissed, as the criteria for such applications are distinct.

[1] This is an appeal against the decision of the Court of Appeal dated 13 October 2010 reversing the High Court's decision in dismissing the respondent's striking out application made under O 18 r 19 of the Rules of the High 1980 ("the RHC"). Leave to appeal was granted by this Court on 7 February 2012 on the following question:

"Whether the doctrine of res judicata applies to bar an application under O 18 r 19 where an application under O 11 of the Rules of the High 1980 is dismissed on similar grounds".

[2] In this judgment, the appellants will be referred to as the plaintiffs and the respondent as the 4th defendant, as they were in the High Court.

The Facts

[3] This appeal originated from a suit against four defendants including the 4th defendant. The plaintiffs are the shareholders of a local public company known as Unitangkob (M) Berhad ("Unitangkob"), formerly known as Pelangi Jadi Sdn Bhd.

[4] All the four defendants are companies. The 4th defendant owns the 2nd and 3rd defendants, which in turn own the 1st defendant. The plaintiffs alleged that all the defendants companies operated under the same group of company, in which the 4th defendant is ultimately the controlling mind and will of the other companies.

[5] The 1st and 2nd defendants are both private limited companies registered in Malaysia. The 3rd defendant is a private limited company while the 4th defendant is a public listed company, both were incorporated and having their registered address in England.

[6] In 1995, the 4th defendant offered a joint venture in its palm oil business in Sabah to the plaintiffs. Pursuant to that, the plaintiffs entered into two agreements. The 1st was a Shareholder Agreement with the 1st, 2nd and 3rd defendants. The 2nd was a Share Sale Agreement with the 1st defendant. Both agreements were to regulate the joint venture between them. The 4th defendant was never a party to any of the agreements.

[7] Disputes then arose between the parties to the joint venture. On 4 December 2002, the plaintiffs filed a civil suit in Johor Bahru High Court against all the defendants premised upon three causes of action namely; breach of contract, misrepresentation and tort of conspiracy to defraud.

[8] As the 3rd and 4th defendants are companies registered in England, it is a requirement under O 11 r 1 of the RHC that the service of the writ of summons is only permissible with leave of the Court. On 21 March 2003, leave to issue and serve the concurrent writs and the notice of writs out of jurisdiction against the 3rd and 4th defendants was granted by the Court. The writs were duly served on the 3rd and 4th defendants in England.

Application For Setting Aside The Leave For Service Out Of Jurisdiction

[9] The 3rd and 4th defendants then filed an application under O 12 r 7 of the RHC to set aside the leave obtained by the plaintiffs for service out of jurisdiction. The application was dismissed by the Deputy Registrar of the High Court on 17 August 2004. They appealed to the Judge in Chambers. One of the grounds of the appeal was non-compliance with O 11 r 4(1) of the RHC for failing to demonstrate a prima facie